 |
|
Good article on Trump's EO ban, etc.
Posted on: February 11, 2017 at 08:38:38 CT
GA Tiger MU
Posts:
252581
Member For:
26.45 yrs
Level:
User
M.O.B. Votes:
0
Trump's Judicial Debacle
President Trump ’s immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy.
The Ninth Circuit Court of Appeals upheld a Seattle judge’s nationwide temporary restraining order against the refugee pause and travel suspension from seven countries with heightened terrorism risks. The court ruled that the government wasn’t likely to prevail on the merits in a suit brought by Washington state and Minnesota.
The liberals and never-Trump conservatives who’ve spent months predicting the arrival of American fascism are suddenly breast-beating about U.S. checks and balances. Apparently they lack confidence in American institutions unless they’re running them. But while we opposed Mr. Trump’s order on policy grounds, there is reason to worry now about judicial overreach.
***
Remarkably, the three-judge panel’s 29-page decision doesn’t discuss the Supreme Court’s Youngstown doctrine, which teaches that the President’s actions are most legitimate under the Constitution when the executive works in concert with Congress. The plain text of the 1952 Immigration and Nationality Act gives the executive exclusive authority to suspend “the entry of any class of alien” that “would be detrimental to the interests of the United States.”
The Ninth Circuit also made a hash of the important limit on the judicial power called standing. The courts are only supposed to hear cases with specific and concrete injuries that they can resolve. Washington and Minnesota asserted vague and speculative harms to their public university systems, like being deprived of hypothetical talented immigrant students in the future. That’s not good enough under traditional Supreme Court standing doctrine.
Instead, the Ninth Circuit panel held that Mr. Trump’s order violated due process, such as ample notice of the new policy and a hearing for those affected. That might be true for lawful permanent residents travelling abroad, who were first included in the order and then excised under a memo from White House Counsel Don McGahn . (Then they, and not the states, should sue.)
But the Ninth Circuit’s due-process claims even apply to some categories of foreign nationals overseas who have yet to enter the country. The opinion repeatedly cites the Boumediene v. Bush decision of 2008, when the Supreme Court held that the enemy combatants at Guantanamo Bay have a right to challenge their detention by the government.
But the reach of that 5-4 decision was at least cabined to habeas corpus , not a general license to extend constitutional rights willy-nilly to noncitizens. With the Boumediene precedent as a weapon, the Ninth Circuit decision jeopardizes core executive powers over national security. Unelected judges are inviting themselves to serve as policy makers who supervise foreign affairs, and where that impulse stops nobody knows.
The panel notes repeatedly that the Justice Department submitted “no evidence that any alien from any of the countries named in the order has ever perpetrated a terrorist attack,” as if the job of judges is to second-guess the executive branch. Yet last year the Department of Homeland Security reported that some 60 individuals born in the seven countries on Mr. Trump’s list have been convicted of domestic terror-related crimes since 9/11. That’s partly why Congress and President Obama singled the countries out for increased visa scrutiny.
But Justice didn’t cite these figures at oral arguments, probably because the Administration’s appeal has been as rushed and slipshod as the order itself. The secret and ad hoc drafting of the new policy by aides Stephen Bannon and Stephen Miller , with no public explanation and an incompetent rollout, has created an opening that willful judges can use to exceed their powers.
The Trump Administration can now appeal to the Supreme Court, but the wiser course would be to withdraw the order, which would make the Seattle and other cases moot. Homeland Security Secretary John Kelly told Congress this week that he regrets the order didn’t go through the normal channels.
The best option for Mr. Trump is to scrap the order and trust Mr. Kelly to do refugee vetting, but if the President insists on a new order than at least run it through extreme vetting. Consult with Congress and security experts, and make sure the attorneys lock down a legal and constitutional replacement.
The alternative is a possible bloodbath at the High Court. The best Mr. Trump can hope for is a 4-4 split that would uphold the Ninth Circuit ruling. But Justice Anthony Kennedy ’s opinion and human-rights jurisprudence are implicated via Boumediene , and a 5-3 defeat is more likely, perhaps worse if Mr. Trump keeps denouncing the judiciary.
Presidents who tee themselves up as the mad Twitter king are rarely saved by judicial modesty. The Ninth Circuit ruling could be a fresh start for Mr. Trump to correct a mistake and then earn a national-security victory, if he’ll take it.
President Trump ’s immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy.
The Ninth Circuit Court of Appeals upheld a Seattle judge’s nationwide temporary restraining order against the refugee pause and travel suspension from seven countries with heightened terrorism risks. The court ruled that the government wasn’t likely to prevail on the merits in a suit brought by Washington state and Minnesota.
The liberals and never-Trump conservatives who’ve spent months predicting the arrival of American fascism are suddenly breast-beating about U.S. checks and balances. Apparently they lack confidence in American institutions unless they’re running them. But while we opposed Mr. Trump’s order on policy grounds, there is reason to worry now about judicial overreach.
***
Remarkably, the three-judge panel’s 29-page decision doesn’t discuss the Supreme Court’s Youngstown doctrine, which teaches that the President’s actions are most legitimate under the Constitution when the executive works in concert with Congress. The plain text of the 1952 Immigration and Nationality Act gives the executive exclusive authority to suspend “the entry of any class of alien” that “would be detrimental to the interests of the United States.”
The Ninth Circuit also made a hash of the important limit on the judicial power called standing. The courts are only supposed to hear cases with specific and concrete injuries that they can resolve. Washington and Minnesota asserted vague and speculative harms to their public university systems, like being deprived of hypothetical talented immigrant students in the future. That’s not good enough under traditional Supreme Court standing doctrine.
Instead, the Ninth Circuit panel held that Mr. Trump’s order violated due process, such as ample notice of the new policy and a hearing for those affected. That might be true for lawful permanent residents travelling abroad, who were first included in the order and then excised under a memo from White House Counsel Don McGahn . (Then they, and not the states, should sue.)
But the Ninth Circuit’s due-process claims even apply to some categories of foreign nationals overseas who have yet to enter the country. The opinion repeatedly cites the Boumediene v. Bush decision of 2008, when the Supreme Court held that the enemy combatants at Guantanamo Bay have a right to challenge their detention by the government.
But the reach of that 5-4 decision was at least cabined to habeas corpus , not a general license to extend constitutional rights willy-nilly to noncitizens. With the Boumediene precedent as a weapon, the Ninth Circuit decision jeopardizes core executive powers over national security. Unelected judges are inviting themselves to serve as policy makers who supervise foreign affairs, and where that impulse stops nobody knows.
The panel notes repeatedly that the Justice Department submitted “no evidence that any alien from any of the countries named in the order has ever perpetrated a terrorist attack,” as if the job of judges is to second-guess the executive branch. Yet last year the Department of Homeland Security reported that some 60 individuals born in the seven countries on Mr. Trump’s list have been convicted of domestic terror-related crimes since 9/11. That’s partly why Congress and President Obama singled the countries out for increased visa scrutiny.
But Justice didn’t cite these figures at oral arguments, probably because the Administration’s appeal has been as rushed and slipshod as the order itself. The secret and ad hoc drafting of the new policy by aides Stephen Bannon and Stephen Miller , with no public explanation and an incompetent rollout, has created an opening that willful judges can use to exceed their powers.
The Trump Administration can now appeal to the Supreme Court, but the wiser course would be to withdraw the order, which would make the Seattle and other cases moot. Homeland Security Secretary John Kelly told Congress this week that he regrets the order didn’t go through the normal channels.
The best option for Mr. Trump is to scrap the order and trust Mr. Kelly to do refugee vetting, but if the President insists on a new order than at least run it through extreme vetting. Consult with Congress and security experts, and make sure the attorneys lock down a legal and constitutional replacement.
The alternative is a possible bloodbath at the High Court. The best Mr. Trump can hope for is a 4-4 split that would uphold the Ninth Circuit ruling. But Justice Anthony Kennedy ’s opinion and human-rights jurisprudence are implicated via Boumediene , and a 5-3 defeat is more likely, perhaps worse if Mr. Trump keeps denouncing the judiciary.
Presidents who tee themselves up as the mad Twitter king are rarely saved by judicial modesty. The Ninth Circuit ruling could be a fresh start for Mr. Trump to correct a mistake and then earn a national-security victory, if he’ll take it.
Please explain why this message is being reported.
MESSAGE THREAD
Good article on Trump's EO ban, etc. - GA Tiger MU - 2/11 08:38:38