Trump’s Judicial Debacle The botched immigration order has given judges a chance to restrict executive power over national security.
https://www.wsj.com/articles/trumps-judicial-debacle-1486699412
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.
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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. CONTINUE AT SITE
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