President Trump’s so-called “refugee ban” executive order is now suspended and mired in a legal battle in the federal courts. The Ninth Circuit Court of Appeals denied the Justice Department’s motion for an immediate reinstatement of the EO, which means it could be days before the case is heard.
Trump Administration's request for immediate administrative stay DENIED. pic.twitter.com/R3tTRPyv3U
— WA Attorney General (@AGOWA) February 5, 2017
Given the Ninth’s consistent and severe tilt to the left (it’s suffered so many reversals, were it a ship it would have capsized), we can expect that Trump’s EO is, for the most part, dead until after Gorsuch’s confirmation. I have a hard time imagining SCOTUS taking up the issue in the midst of that political football–but you never know.
What will President Trump do–besides bloviate, that is?
What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Shall we answer the president’s question?
Our country is properly operating when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.–if that ban was done by executive order, and there are questions about the legality and procedural correctness under the laws cited.
The U.S. Constitution delegates the power to regulate immigration exclusively to Congress. Acting Solicitor General Noel Francisco argued that Congress delegated its Constitutional power to the executive branch. More troubling, he argued that the courts have no voice in the power consolidation.
‘The power to expel or exclude aliens is a fundamental sovereign attribute, delegated by Congress to the executive branch of government and largely immune from judicial control,’’ the brief says.
I’m hearing echoes of Obama here. Can the Trump (or any president) administration seriously claim that Congress delegated a key Constitutional authority to the executive branch, and it’s immune from judicial review?
Do we have a dictatorship here with a rubber-stamp parliament (like, maybe, Russia, which Trump loves so much)? It’s great that Trump wishes to roll back the administrative state’s reams of regulations, but it’s not so great that he has no desire to simultaneously roll back the power of the administrative state and its executive master to rule this country.
America has three branches of government. For that simple reason, and to teach Trump an important civics lesson, the courts should leave immigration reform–and the authority to execute “extreme vetting”–largely to Congress.
Congress has given various levers and dials to the president, which is right and proper, to control various security and border functions. Trump’s EO seems (by most impartial readings) to remain within the law. But there are still questions about how it was implemented, and more seriously, how Trump seems to be content to use blunt hammer authoritarian approaches to governing.
Were the EO properly drafted, coordinated with the agencies involved, vetted by the Justice Department, and not foisted upon the nation as a “gotcha” in a reality show, this crisis would certainly have been avoided. But now, Trump has to learn that he can’t fundamentally alter American governance to suit his personality and tastes.
Let the president work with Congress, and let him satisfy the federal courts that he isn’t trying to build a junta. It took FDR an entire term to learn that America has three equal branches of government. Let’s hope Trump learns faster.