Executive Order in the Court

A Federal judge in Washington State today issued an injunction preventing the enforcement of President Trump’s Executive Order (EO)halting immigration and entry programs from seven nations for 90 and 120 days respectively.  I have already written about my own response to the EO as a policy matter and also said something about a Christian response or responses.  Now however, the question has shifted to the legality of the order.

Let’s go through what is the very early stages of this case.  Trump issued the order pursuant to (under the authority of) the Immigration and Nationality Act, particularly section 212(f).  He invoked the following language:  “to protect the United States and its citizens from foreign nationals who intend to commit terrorist attacks in the United States.”  This language in turn is based on the language of the statute, which states in part:

“(f) 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.” (INA, Sec 212(f))

I am not yet sure what legal ground the judge used to issue his nationwide ban on enforcement (a very rare action by a District Court judge), but if his ruling was anywhere close to valid, it would have to have been based on the language of the statute itself and the EO’s alleged disjunction with it, not any mere dislike for it or “feeling” that it was unjust.  Moreover, the Federal courts have given very (very) wide deference to presidents invoking laws based themselves on national security concerns.  In addition, the president already has a great deal of discretion regarding “foreign policy” under the Constitution itself–to which Federal courts also defer.

This injunction will be overturned–though not necessarily by the Ninth Circuit–probably by the Supreme Court itself.  Whether you like it or not, it is legal and constitutional.  However, let me also add that President Trump’s tweet about the judge was uncalled for and pretty dumb.  Throw the device into the Potomac and do your talking in other, more presidential, ways.

22 thoughts on “Executive Order in the Court”

  1. Is not the legal ground they are claiming based on the Immigration and Nationality Act of 1965 which forbids discrimination on the basis of “nationality, place of birth, or place of residence”? I agree that, putting the debate over necessity, wisdom, morality aside, the order is legal because the intent of the 1965 act was to overturn non-national security related immigration policy that heavily favored Western Europeans. This order, on the other hand, remains valid under the clause in the 1952 Act which you cited.

  2. “However, let me also add that President Trump’s tweet about the judge was uncalled for and pretty dumb.”

    Is that all you have to say about it? Isn’t calling a judge who went through the confirmation process (after having been nominated by a Republican president!) a “so-called” judge a slap in the face to our whole judicial system?

    I say it is. It sets a seriously bad precedent, a precedent that it is fine for a president to disrespect our entire political system of checks and balances.

    It isn’t as if Judge Robart has a “so-called” law degree and worked in our “so-called” judicial system before being nominated by a “so-called” president and then being confirmed by a “so-called Senate” to serve on a “so-called” district court.

    1. “It sets a seriously bad precedent, a precedent that it is fine for a president to disrespect our entire political system of checks and balances.”

      Trump does need to learn when to keep his mouth shut but if we are going to talk about disrespecting our political system of checks and balances, then criticism of the judge is also warranted for intruding into a matter of national security, which the Constitution, and Congress through the cited 1952 act, clearly bestows upon the President.

      Trump’s remarks are certainly troublesome, but the action of the judge sets a seriously bad precedent, a precedent that it is fine for a judge to disrespect our entire political system of checks and balances.

  3. Speaking about dumb things DJT says, did anyone here catch him cussing at the National Prayer Breakfast?

    Plus talking about the ratings of a really stupid television show?

    Talk about idiot box!

    1. Jeff, a representative from the white house fabricated a terrorist attack to justify a non-existent action by our former president. Saying H E double hockey stick or making fun of Arnold shouldn’t even make the list of things to talk about.

      1. In comparison, no, it shouldn’t. And, no, it doesn’t. But compare President Obama’s thoughtful comments during national prayer breakfasts to Trump;’s disgraceful remarks last week. And yet who has been labeled an anti-American Muslim Marxist, and who gets the vote of 81% of evangelicals?

        If Obama said h-e, etc. at a prayer breakfast….

  4. More from our big mouthed president:

    “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

    So if we have a terrorist attack, it will be the fault not of the president’s reckless Muslim ban, but rather of the judge AND THE COURT SYSTEM?

    His comments ought to scare us down to the marrow in our bones. Sounds like we are one national emergency away from losing our courts to a tyrant. That is how dictatorships happen, sometimes.

    1. Nathan:
      Ordinarily I would agree, but on this issue I believe even a couple of the liberals will go with the president or else they would be overturning a boatload of precedent.

      Jeff:
      Perhaps you might relax just a bit. It almost sounds as if you would like to throw gasoline on the fire–I agree there is a fire (meaning the president is somewhat out of control verbally on twitter) but let’s not overplay this. Though not as “earthy” President Obama directly and to their faces criticized the members of the Supreme Court over the the Citizens United decision. I thought that was wrong too.

      1. Dr. Clauson,

        Do you not sure a huge difference there?

        Criticizing a ruling vs questioning the legitimacy of a judge?

      2. Do you not understand the difference between criticizing a judge (or expressing disagreement with a judge (s)) and questioning our entire judicial system and implying that any upcoming act of terrorism should be blamed on a judge?

        So-called judge. Let that sink in.

        If Obama had called Scalia a so-called judge, you’d still be angry and upset. But if a Republican does it, then I need to stop fanning the flames. Your ideological biases are clouding your judgement, I am afraid.

      3. I have to agree with Marc on this one. I don’t see how calling someone a “so-called” judge is questioning the entire judicial system as you would suggest. He is mocking that judge which is very wrong, but mocking is Trump’s way of criticism, and even though it is very unprofessional that does not mean he is trying to become a dictator. I seem to notice big leaps with little evidence. I still would consider myself to be in the middle in my opinions about Trump, I just don’t make huge assumptions on either side. Honestly, I think this presidency will pass like any other, with its benefits and flaws, and people are going to see how much they over-exaggerated and stressed about something that really wasn’t that big of a deal. I could be wrong, but from what I’ve seen thus far, Trump isn’t going to end the world (or America) with his executive orders.

  5. “This injunction will be overturned–though not necessarily by the Ninth Circuit–probably by the Supreme Court itself.”

    Dr. Clauson, after some consideration, I am not sure I agree with this assessment. The 9th Circuit is reliably liberal and will almost certainly strike down the executive order. The Supreme Court would likely rule 4-4 on the issue, which would leave the 9th Circuit ruling in place. So at this point, unless the 9th Circuit surprises, or one of the 4 liberal justices surprises, I think the executive order might be toast.

    1. Jeff:
      Let’s not fool ourselves about statements about the judges. Both were either intended or Unintended delegitimations of the judges or courts. Obama was no saint on this; neither was the current president. And I didn’t mention how democrat senators and congressmen used the former president’s criticism to explicitly question the judges. Let’s not adopt any righteous attitude about either side.

      1. Please name me a Democratic party member who referred to a judge as a “so-called judge.”

        Both sides do NOT do it.

      2. To be honest, while I don’t like what Trump did, people are really making a mountain out of a mole hill on this.

        All this fear-mongering about undermining the judicial system, or “one national emergency” away from dictatorship is irresponsible at best, reckless at worst. It is not going to happen. There are simply too many concrete checks and balances in the Constitution for that to happen. Trump will find that out if he goes too far.

  6. I agree with the points you made here. In all honesty, that district judge was out of line to implement a nation wide ban on Trumps executive order.

    1. Given the sheer number of injunctions that were being refused by the administration, the court had no choice.

      1. Out of line because, like it or not, the law (as shown above) is on Trump’s side and if the judge went strictly by the letter of the law, as they are supposed to, no injunction would have been issued. So issuing the ruling in the first place is, in fact, an abuse of power.

  7. I support the executive order, but I do not believe that the judge was out of line in issuing the injunction. I think that this might be a good way for Trump to see that he is not just going to be able to do anything he wants.

  8. The most frustrating thing to me on this whole ban is how Trump is wasting political capital. Obviously, the ban (which it really isn’t even a ban persay), is constitutional. However, the wisdom and merit of issuing it was probably lacking in this case, and I think Trump would have been wise to place this on the back burner until he was more settled with his Cabinet. The first 100 days of the Presidency are supposed to be like a honeymoon, but I fear that Trump may have cut his honeymoon short.

  9. I agree with this post and find it very interesting. The district judge was out of line because it is the law and that is what we are supposed to follow. I agree with comments above that issuing the law in the first place is an abuse of power.

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