The 9th Circuit’s dangerous and unprecedented use of campaign statements to block presidential policy

The U.S. Court of Appeals for the 9th Circuit has just upheld a nationwide temporary injunction on President Trump’s executive order relating to refugees and visas from certain countries. I think the court’s opinion is weak in most respects, but I will address one of the most interesting and potentially far-reaching aspects.

Generally, the president has vast discretion in issuing visas. One of the major arguments against the executive order is that while in principle a president can limit immigration from the seven affected countries, it would be unconstitutional for President Trump in particular to do so, because in his case the action is motivated by impermissible religious bias. The central exhibit for this argument is his campaign statements about a “Muslim ban.”

While the 9th Circuit did not address this at great length, focusing instead on due-process arguments, it did accept the basic validity of the form of the states’ argument. “The States’ claims raise serious allegations and present significant constitutional questions,” wrote the court.

There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive. The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.

Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained, even looking at such statements would “chill debate during campaign[s].” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).

There are sound policy reasons for ignoring campaign statements or promises to shed light on subsequent official action. For one, campaign promises are often insincere, designed to appeal to voters. Indeed, they are explicitly instrumental, and their goal is not policy outputs, but election. Moreover, implemented laws or policies are often substantially different from promises, as is the case here.

Even the use of legislative/administrative history, in its most expansive form, looks only at the actual process – and not the personal background of the legislators, let alone before they took office. As the 9th Circuit itself put it in a discrimination case, “statements by decisionmakers unrelated to the decisional process itself” do not prove a discriminatory motive. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1138 (9th Cir. 2004).

The 9th Circuit’s ruling Thursday throws open a huge door to examinations of the entire lives of political officials whose motives may be relevant to legal questions. This introduces more uncertainty and judicial power into legal interpretation than even the most robust use of legislative/administrative history. Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories.

More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.

Moreover, the Constitution’s oft-forgotten opinion clause supports disregarding pre-inauguration statements. The Constitution puts at the president’s service the officials of the administration and requires they advise him as asked. What it means here is that the president must be seen as the unitary head of the executive branch and the pinnacle of a process of executive decision-making. That process is the only constitutionally recognized executive process. A candidate’s possible plans or promises are not part of the process. The opinion clause also suggests a president cannot be bound by the oral statements of federal officials (like Rudy Guiliani), especially when not “upon any Subject relating to the Duties of their respective Offices.”

By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.

This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.

At oral argument, the judges asked if Trump could ban travel from all majority-Muslim countries. The question should be reversed. If the plaintiffs cast Trump’s views of immigration as impermissible, by this reasoning he cannot take the otherwise clearly legal action of restricting immigration from any of the world’s 50-odd majority-Muslim countries. This would mean that immigration system as created by Congress — which depends on broad executive discretion — will have essentially been destroyed.

The White House is seen as the U.S. Court of Appeals for the 9th Circuit ruled that President Trump’s travel order will remain blocked. (European Pressphoto Agency)

No, the 9th Circuit isn't the 'most overturned court in the country,' as Hannity says

Fox News host Sean Hannity says it’s no surprise that the 9th Circuit Court of Appeals ruled against President Donald Trump and his executive order on immigration.

"We have both been predicting for days now the 9th Circuit — the most liberal court of appeals, the most overturned court in the country — it would act this way," Hannity said on his show Feb. 9, speaking with a guest.

Several states have sued the Trump administration over its executive order that temporarily blocks immigration and travel from seven countries in the Middle East and Africa. A federal trial court judge in Seattle ruled Feb. 3 that the federal government could not enforce the executive order while the case is pending.

So lawyers for the administration appealed that decision to the 9th Circuit, which hears cases from most of the western United States and Alaska and Hawaii. On Feb. 9, a panel of three judges ruled unanimously to affirm the Seattle judge’s decision. (The court didn’t rule on whether the executive order is legal. That will happen later.)

It’s possible the administration will try to appeal their case again, this time to the Supreme Court. Right after the judges handed down their decision, Trump tweeted, "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"

As Hannity noted, the 9th Circuit has a reputation for being liberal. But we wondered if he was correct when he said the Supreme Court overturns more cases from the 9th Circuit than any other appeals court in the country — the implication being that the 9th Circuit is out of step with the Supreme Court.

In our research, we found that the 9th Circuit has a higher-than-average reversal rate, but not the highest. Additionally, experts told us that counting reversals doesn’t necessarily say much about the quality or substance of the 9th Circuit’s work.

The numbers

To evaluate this claim, we turned to SCOTUSBlog’s Supreme Court statistics archive, specifically their Circuit Scorecards, which track how often the Supreme Court justices agree or disagree with the lower court decisions.

The Supreme Court hears cases from the 50 state courts and 13 federal appeals courts, known as circuit courts. The cases that the Supreme Court chooses to take on are often disputed among the lower courts, complex, and problematic, so there’s a reasonable chance that the Supreme Court will decide that the lower court’s decision was wrong.

In fact, the Supreme Court reversed about 70 percent of cases it took between 2010-15. Among cases it reviewed from the 9th Circuit Court of Appeals, it reversed about 79 percent.

The 9th Circuit’s reversal rate is higher than average, but it’s not the absolute highest among the circuit courts. That distinction goes to the 6th Circuit, which serves Ohio, Michigan, Kentucky and Tennessee, with an 87 percent average between 2010-15.  The 9th Circuit is in third place.

6th Circuit - 87 percent;

11th Circuit - 85 percent;

9th Circuit - 79 percent;

3rd Circuit - 78 percent;

2nd Circuit and Federal Circuit - 68 percent;

8th Circuit - 67 percent;

5th Circuit - 66 percent;

7th Circuit - 48 percent;

DC Circuit - 45 percent;

1st Circuit and 4th Circuit - 43 percent;

10th Circuit - 42 percent.

We also found that the 9th Circuit never had the highest reversal rate in any individual term between 2004-15. (That’s the farthest back we could go.)

A spokesperson for Hannity pointed us to a 2014 article in National Review titled, "Ninth Circuit Leading the Pack for ‘Most Reversed.’ " But the evidence presented in the article does not support the headline.

So Hannity’s claim that the 9th Circuit is the "most overturned court in the country" is incorrect.

The Supreme Court only hears a handful of cases from each circuit each year, so the rate of reversal is highly variable, said Jonah Gelbach, a law professor at the University of Pennsylvania and a statistician. In 2014, for instance, the 2nd Circuit had a reversal rate of 100 percent, which sounds pretty bad until you find out that the Supreme Court only heard one case from the 2nd Circuit that entire season.

The 9th Circuit is by far the largest circuit. In the 12 months leading up to March, 31, 2015, just under 12,000 cases were filed in the 9th Circuit — more than 4,000 more than the next-largest circuit, the 5th Circuit. Despite that gigantic docket, the Supreme Court heard just 11 cases from the 9th Circuit in 2015, reversing eight.

This means the Supreme Court generally reverses far less than 1 percent of all the cases the 9th Circuit (and other circuits) decide.

"Given the small numbers of cases involved, it can be difficult to draw any serious conclusions from such statistics about the quality of the courts involved," Gelbach said. "Having said that, the 9th Circuit does seem to consistently have a high reversal rate over time."

It’s possible that the sheer size of the 9th Circuit, as well as some of its procedures, cause it to produce more "outlier decisions," which are cases the Supreme Court always reverses, than other circuits — leading to a higher reversal rate, said University of Pennsylvania law professor Kermit Roosevelt.

Roosevelt said there might have been a time in the past when the 9th Circuit was considerably more liberal than the Supreme Court, stemming from the fact that Democratic President Jimmy Carter didn’t get the opportunity to appoint a Supreme Court justice, though he did appoint several judges to the 9th Circuit.

Today, the 9th Circuit might still have the highest number of Democratic appointees of any appeals court, but there’s been enough turnover in the past few decades that it’s not as much of an outlier, Roosevelt said.

Our ruling


Hannity said the 9th Circuit is "the most overturned court in the country."

While the 9th Circuit has a higher than average reversal rate among cases it sends to the Supreme Court, it has not had the highest rate since at least 2004 (the oldest data point we could find).

Even if it did, experts told us that the massive size of the 9th Circuit compared to the handful of cases it sends to the Supreme Court every year make reversal rates an imperfect measure of the quality of the 9th Circuit’s decisions. More broadly, experts say this statistic is a poor way of comparing courts.

We rate Hannity’s claim False.

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