Monday, February 6, 2017
Seattle Judge Goes Off The Rails By Smacking Down Trump Executive Order. Trump Attacks.
Late on Friday afternoon, US District Judge James Robart, a George W. Bush
appointee, issued a temporary injunction against President Trump’s immigration
and refugee executive order. The order applied nationally and broadly; it
stopped Trump’s plans on refugees, as well as admission of those from Iran,
Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order made no legal
argument whatsoever about the case – instead, the judge simply declared t
hat the plaintiffs, the states of Washington and Minnesota, were likely to
prevail on the merits. The only indicator of Robart’s position came during
oral arguments, when he slapped the government’s lawyer for linking terrorism
to the executive order: Robart said that Trump’s order wasn’t legal unless
it was “based in fact, as opposed to fiction,” explaining that no terrorist
attacks were perpetrated by people from the seven named countries.
It is not necessary for the executive branch to demonstrate that a policy it adopts
prevents a harm that has already occurred. The executive branch has broad
latitude in refugee and immigration policy for purposes of national security.
The Department of Justice has rightly argued that judges do not have
access to classified risk information as the president does; furthermore,
foreign citizens abroad do not have Constitutional rights.
All of this led President Trump to lash out on Twitter at Judge Robart:
First, Trump has every right to criticize the court decision. The same media
going apoplectic over President Trump’s criticism of a court decision nodded
along as Barack Obama openly lied about the Citizens United decision in front of members of the Supreme Court at a
State of the Union Address, then slammed Justice Alito for having the
temerity to shake his head at the untruth.
Second, Trump has a habit of attacking anyone who disagrees with him.
It would have been nice for Trump to attack the judge on the grounds that
he has exceeded his legal power, not on the grounds that Robart’s policy
will be damaging to national security. Down that logical road lies
authoritarianism: it’s always easy for the executive branch to violate rights
in the name of collective safety, then blame judges for undermining safety
if something violent happens. Robart may be wrong on policy and law, but
suggesting that judges “own” the political consequences of legal decisions
is awful for the functioning of the judicial branch.
With all of that said, is this a Constitutional crisis, as the media seem to be
suggesting? Absolutely not. So far, there’s been no evidence that Trump
is ignoring the judicial ruling. Even if he did, Congress could quickly strip
him of his power to do so. The Constitution was written with gridlock and
rough interplay in mind. The judiciary should know that its review of legislative
and executive acts can be checked, too. And it can certainly be criticized
by members of the other branches, including the president.