The federal courts have stripped the president of executive power to perform “fundamental acts of sovereignty.” This is a full-blown constitutional crisis that will require the Supreme Court’s action to correct, or our republic is headed for trouble.
Hawaii-based US District Court Judge Derrick Watson issued a 43-page ruling to block President Trump’s revised immigration executive order. While the first restraining order and subsequent decision upholding it by the Ninth Circuit Court of Appeals was terribly flawed, this new TRO follows the same precedent.
That precedent treats Trump’s prior remarks on the campaign trail as evidence of a motive of religious discrimination. Think about it: the courts have attributed personal motives of the president based on campaign rhetoric, and applied that to the executive powers of the president, used to limit those powers. This has never been done before.
If the same standards had been used against former President Obama, many of his personal statements would have exposed his executive orders to claims of discrimination. But it never entered anyone’s mind to apply that kind of judicial overreach to Obama. (Perhaps because Obama is a lawyer? And maybe because Trump is fairly harsh on the legal profession as a whole, there’s an element of payback here?)
At the same time the Hawaii order was written, the Ninth Circuit denied an en banc hearing on the first, Washington State TRO.
Five judges dissented in the decision, which effectively forces the issue to the Supreme Court. Their dissent, calling the ruling a “manifest error,” is worth noting, as Legal Insurrection pointed out.
The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error.
In early February, the Los Angeles Times (normally very critical of Trump), cited a Supreme Court case and subsequent Congressional action in support of Trump’s executive power.
The exclusion of aliens is a fundamental act of sovereignty … inherent in the executive power,” the Supreme Court said in 1950. And lest there be doubt, Congress adopted a provision in 1952 saying the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”
If an act is “inherent in the executive power,” but the the ability to exercise that power is subject to the whims and suppositions of federal judges, that effectively puts the power into the judges’ hands. It creates a star chamber of sorts where the president has to go on trial for everything he’s said and past motives in order to pass muster by an unelected panel of masters.
And those masters can hold themselves above review–hence the awful decision by the Ninth Circuit Court to refuse an en banc hearing.
This is not how our republic is supposed to function, and the Supreme Court is charged with responsibility to uphold the Constitution and the rule of law, not judges drunk with their own power. If SCOTUS won’t act, then it falls to Congress to clip the wings (or abolish) the renegade judges of their jurisdiction.