One of President Donald Trump’s first acts of his second term was to proclaim that there was an “invasion” of immigrants at the border between Mexico and the U.S. His proclamation aimed to block people from entering the U.S. and applying for asylum. Last week, the D.C. Circuit held in Refugee and Immigrant Center for Education and Legal Services v. Mullin that the President’s Proclamation and associated Guidance violated the Immigration and Nationality Act (INA).

Judge Childs wrote the opinion, which Judge Pillard joined, and which began by emphasizing that Congress has “‘plenary authority’” over “the admission of foreign individuals.” In this case, Congress had not “grant[ed] the Executive the expansive removal authority it asserts.” The President had no authority to “circumvent the INA’s removal procedures and [to] cast aside federal laws affording individuals the right to apply and be considered for asylum or withholding of removal protections.” To hold otherwise would be “to adopt an interpretation of the asylum statute that would allow the Executive Branch to unilaterally and heedlessly return individuals even to countries where they will most certainly face persecution – forced labor, indefinite imprisonment, or even summary execution – on account of a protected ground.” While the Executive Branch has discretion to deny asylum in an individual case, “the INA does not support categorical, ex ante denial of asylum with no consideration of what the would-be applicant may face if removed.” 

In addition, the court held that the district court properly certified a class under Rule 23(b)(2), which consisted of “individuals present in the United States, temporally confined to the period the emergency Proclamation remains in effect, and include[d] only those individuals facing actual and imminent harm from the Proclamation and Guidance.” The federal government argued that the class should not be open to people who are not yet in the U.S. but will meet the class definition in the future. Judge Childs concluded that “[t]his argument clashes with the established law that courts may award class-wide injunctive or declaratory relief under Rule 23(b)(2) so long as one member of the class has standing” and reasoned that the Supreme Court’s opinion in TransUnion LLC v. Ramirez, which was about standing and a Rule 23(b)(3) class for damages, did not overrule that established doctrine. Citing the Supreme Court’s decision in Brown v. Plata, the landmark case about overcrowding and the horrific healthcare system in California’s prisons, Judge Childs further explained that “it is well established that those who are not yet members of a Rule 23(b)(2) class may become class members in the future once they face imminent harm from the challenged policy.” Under the Supreme Court’s precedent, class certification is an “appropriate” and “rigorous process” that may result in sweeping injunctive relief to remedy rights violations – a point that, Judge Childs reasoned, was affirmed by Trump v. CASA.

The court also held that Section 1252(f)(1) of the INA did not prohibit the district court’s injunction. That section prohibits injunctions related to implementation of Part IV of the INA. The district court’s injunction did not address Part IV; instead, it addressed the President’s Proclamation, a document that invoked sections in Part II of the INA “as its source of authority.” 

Judge Walker concurred in part and dissented in part, agreeing with the majority that “[t]he Executive cannot remove aliens to countries where they will be persecuted, and the Proclamation and Guidance cannot strip them of mandatory procedures that protect against that removal.” In his view, however, “[t]he Executive has already exercised his lawful discretion to deny all asylum applications,” and, therefore, “he may foreclose the application process as futile.” To Judge Walker, moreover, the class definition was too broad. In his view, the majority had done an “extraordinary workaround to TransUnion, CASA, and Article III,” while resting too much upon “a passing remark in Brown v. Plata,” which, he ventured, was “probably dicta.” 

In considering the propriety of the injunction in light of Section 1252(f)(1), Judge Walker offered an intricate, hedged, and heavily footnoted theory of inherent presidential power: “the President has an inherent, generalized authority to expel aliens.” The theory, Judge Walker conceded, has its critics, including Professor Michael McConnell in The President Who Would Not Be King: Executive Power Under the Constitution. But even if one cannot “draw overly firm conclusions about the originalist bona fides of an inherent executive expulsion power,” the Supreme Court’s decisions in United States ex rel. Knauff v. Shaughnessy and Fong Yue Ting v. United States made a “clear and compelling case” for it. There are, Judge Walker wrote, “‘structural advantages of a unitary Executive,'” as illustrated by, among other examples, the “recent Maduro arrest” (the lawfulness of which is discussed here, here, and here).

Moving from Venezuela to Iran, in United States v. All Petroleum-Product Cargo Onboard the M/T Arina, the D.C. Circuit decided a case about Iranian oil and its effects on energy markets. In 2021, the U.S. seized 700,000 barrels of crude oil from the M/T Arina and the M/T Nostos. It sold the oil for more than $50 million. Later, a Turkish commodities trading company sought the proceeds of the sale, claiming that it owned the oil. In its civil forfeiture complaint, the U.S. alleged that the oil “belonged to an entity – [the National Iranian Oil Company’s (NIOC)] subsidiary, the National Iranian Tanker Company – that materially supported terrorism by facilitating oil sales for [the Islamic Revolutionary Guard Corps].” The commodities trading company moved to dismiss the U.S.’s forfeiture complaint, arguing that it was missing three necessary allegations. 

Writing for a unanimous panel (Judges Henderson, Katsas, and Garcia), Judge Garcia affirmed the district court’s denial of the motion to dismiss. The complaint adequately alleged that the NIOC owned the oil, that its “material-support offense” affected foreign commerce, and that this offense “was ‘calculated to influence’” the conduct of the U.S. government. Iranian oil sales, as the D.C. Circuit recognized, affect global energy markets and thus “predictably impact[] U.S. commerce,” even when the oil is not bound for the U.S. – a conclusion that would not seem to require a D.C. Circuit appeal, briefing, and argument to reach.

In Sidak v. ITC, the D.C. Circuit made many interesting pronouncements about important issues of administrative law and federal courts law but ultimately issued a “‘narrow’” holding in what it called “‘an unusual case.’” The panel was Judges Katsas, Rao, and Walker, with Judge Walker writing the opinion. The issue was this: could a third-party expert witness who was covered by an International Trade Commission (ITC) protective order get into an Article III court and get a permanent injunction against ITC enforcement of the order, when the ITC had ratified the prior, unconstitutional appointment of the ALJ who issued the order, but had not ratified the order? 

The ALJ issued the order, which aimed to protect trade secrets, in a matter between Qualcomm and Apple. The order required the expert witness (among others) to destroy documents. By and by, the ITC got worried that the expert had not destroyed the documents. During the course of the investigation, after multiple information requests from the ITC, the expert witness sued the ITC in the district court, arguing that the protective order was void and requesting an injunction against its enforcement. His argument was that the ALJ’s appointment violated the Appointments Clause, a point that the ITC did not dispute, and that the ALJ’s protective order was void because the ITC never ratified it. Instead, the ITC only ratified the ALJ’s prior appointment “[i]n anticipation of” the Supreme Court’s opinion in Lucia v. SEC.

Judge Walker’s opinion for the Court covered a lot of ground, including Article III standing, ripeness, special statutory review schemes, rights of action, forfeiture, the de facto officer doctrine, and eBay’s test for injunctions – and all in a brisk 15 pages. The case would make for an interesting final exam question. Is “constitutional ripeness . . . distinct from Article III standing”? Yes – and no: “in [Sidak],” they “‘boil[ed] down to the same question.’” Should the court wait for the agency to finish its enforcement proceeding before adjudicating the Appointments-Clause based challenge? No, because such a challenge “falls outside its expertise – and well within [the court’s] own.” Is “immediate review . . . unavailable” when the agency has not taken a final action? No, of course not, when the plaintiff “relies on an implied constitutional right of action in equity.” But, then again, come to think of it, “[t]he ITC could have argued that because judicial review after final agency action is an adequate remedy, [the plaintiff] cannot maintain any implied claim in equity, much less obtain the extraordinary remedy of an injunction.” The ITC could have argued that but did not. Moreover, the ITC “could have tried – and still can try – to ratify past actions like the Qualcomm-Apple protective order.”