The Volokh Conspiracy

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The most important part of Judge Bybee's dissent from denial of en banc review in Washington v. Trump


As Eugene notes below, this week the U.S. Court of Appeals for the 9th Circuit declined to grant an en banc rehearing in Washington v. Trump, the decision temporarily restraining the Trump administration's first immigration executive order, which has since been replaced with a revised order. The case itself is now moot, but the original panel decision remains as 9th Circuit precedent.

Five justices dissented from the denial of en banc review, arguing that the panel decision made multiple legal errors and should be vacated. In my opinion, Judge Bybee's opinion, joined by Judges Bea, Callahan, Ikuta and Kozinski, makes a fairly persuasive case under current law, but readers may judge for themselves.

Apart from the legal arguments, Bybee's dissent also comments on the broader context in which this litigation has occurred. Whatever one's view of the president, his immigration policies, and the resulting legal disputes, this portion of the opinion is well worth a read. I've reproduced it below.

We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches-and perhaps especially when we disagree-we have to trust that the wisdom of the nation as a whole will prevail in the end.

Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.

Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government's request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel's flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse-particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

This statement deserves a wide readership, including at 1600 Pennsylvania Avenue.