French: Once Again, Judges Defy the Law to Defy Trump

In the last week, two federal district-court judges in two different federal circuits have issued new injunctions against the Trump administration’s latest “travel ban.” Both injunctions are wrong, but one is dangerously wrong, representing not just an extraordinary act of judicial supremacy but also a cavalier disregard for the Supreme Court of the United States. Before I go any farther, let me add this caveat. One of the judges (Theodore Chuang, from Maryland) is a close friend of mine. I’ve known him since my earliest days of law school, and he’s a man of keen intellect and high integrity. He’s one of Barack Obama’s best appointments to the federal bench. Even the smart and wise can be wrong, however, and he’s wrong in this case. But first, some background. We are now on our third travel-ban executive order. The Trump administration withdrew the first one (we’ll call it EO-1) after poor drafting and incompetent and possibly even malicious implementation created chaos in airports nationwide and contributed to a wave of court injunctions blocking its enforcement. While court cases were still pending against EO-1, the Trump administration went back to the drawing board and crafted a second executive order, EO-2. Both EO-1 and EO-2 temporarily blocked immigration from multiple jihadist or jihadist-dominated nations, and both orders required the Department of Homeland Security to conduct a review to determine whether the United States needed additional information from any given country to determine whether a potential immigrant or visitor represented a security threat to the United States. Plaintiffs of course challenged EO-2, and it was also enjoined — first in district courts and then in federal courts of appeal. These decisions were extraordinary on a number of fronts — so unusual that they constituted a unique kind of jurisprudence. I called it “Trumplaw.” In essence, judges were abandoning common standing rules, rereading binding precedent, and sometimes even ignoring controlling authority to rule against Donald Trump. They were acting less as judges and more as particularly potent members of the #Resistance. On June 26, 2017, the Supreme Court restored a degree of judicial order. It didn’t rule on the merits of the case, but its per curiam (unanimous) decision was instructive nonetheless. First, it lifted the injunction on the vast bulk of the travel ban, keeping in place protections only for those immigrants or visitors with “bona fide relationships with a person or entity in the United States.” Second, it rejected judicial claims that individuals or entities in the United States could somehow represent the interests of the tens of millions of potential immigrants who don’t have any current tie to the United States. Here’s the Supreme Court: “The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing [the travel ban] against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.” The justices thus freed the Trump administration to impose the lion’s share of its temporary travel ban while the administration conducted its review of foreign information-sharing capabilities and processes, and on September 24 it issued a new order (EO-3) responding to the results of that review. According to the order, the secretary of homeland security had identified seven countries that were “inadequate” not just in providing information but also in other security provisions. The secretary recommended immigration restrictions that “would help address the threats that the countries’ identity-management protocols, information-sharing inadequacies, and other risk factors pose to the security and welfare of the United States.” While the recommended restrictions were indefinite, they were not necessarily supposed to be permanent. As the order notes, the restrictions “also encourage the countries to work with the United States to address those inadequacies and risks so that the restrictions and limitations imposed by this proclamation may be relaxed or removed as soon as possible.” The order placed significant restrictions immigration and entry from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. Critically, only the North Korean and Syrian restriction constituted a total ban on entry (and even the total ban could be waived on a case-by-case basis). The rest of the nations faced varying degrees of restrictions but no total ban. For each nation, the order outlined the deficiencies that increase the threat to the United States. For example, regarding Iran, the order notes that it “regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States.” Even so, the order permits entry under valid student visas (with enhanced screening). Plaintiffs promptly challenged EO-3, and the two rulings partially blocking its enforcement — one from Hawaii, and one from Maryland — are wrong in distinct ways. Let’s deal with the worst first: Judge Derrick Watson’s ruling in Honolulu. Simply put, it’s 40 pages of judicial defiance. To understand the extent of Judge Watson’s malfeasance, one has to linger over the actual words of the governing statute: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” How does one get from there — a statute empowering the president to “suspend the entry” of “any class of aliens” when he (not the court) finds their entry would be “detrimental to the interests of the United States” — to a ruling stopping him from exercising exactly that power? When the judge decides it’s entirely up to him to evaluate the president’s reasoning according to the judge’s perception of American interests. Time and again throughout the opinion, the judge suggests alternative policies, wonders at the exclusion or inclusion of different countries, and acts far more like a Homeland Security bureaucrat debating the wisdom of various policy proposals than a judge determining whether the plain language of a very simple statute applies. Yes, the president made findings. They’re on the face of the document. Moreover, those findings happen to be true. Iran is the “source of significant terrorist threats.” Yemen does have “significant identity-management challenges.” They are “amplified by the notable terrorist presence within its territory.” The fact that the judge would prefer a different kind of response does not negate the president’s clear statutory authority.

Precisely!!  And that, really, is the bottom line here.  The President has not only the statutory authority, but the constitutional authority as well!  It’s not even remotely moot. And, they have brazenly defied the Supreme Court.  This spot-on, legal analysis was written by attorney, and Army Reserve officer (Major), David French.  David was awarded the Bronze Star for his service in Iraq.  To read the rest of this excellent piece, click on the text above.

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