IT’S no surprise that President Donald Trump initiated a Twitter attack on Saturday on Federal Judge James Robart for freezing the executive order on immigration from seven majority-Muslim countries. The ultimate fate of the order will depend on proceedings in the 9th Circuit Court of Appeals, which denied the government’s emergency request to reinstate the ban, and possibly even the US Supreme Court. But because judges issue rulings, not press releases, it’s also up to civil society and the news media to defend the judge and the rule of law from the president’s bluster.
So here’s the legal truth: the Seattle-based judge’s decision, which unlike earlier rulings against the order forces the entire executive branch to comply, was completely legitimate. Rather brilliantly, Judge Robart, a George W Bush appointee, cited the precedent of the federal judge in Texas who in 2015 froze President Barack Obama’s executive order on immigration. Turnabout is fair play. The same judicial power that thwarted Trump’s predecessor is now being used against him.
The judge’s order resembles the order against Obama’s Deferred Action for Parents of Americans (Dapa) and Lawful Permanent Residents programme in two key ways.
First, the challenge to Dapa was brought by Texas and 25 other states — not by an individual who claimed to have been injured by the executive order. Similarly, the case that gave rise to Judge Robart’s temporary restraining order against the Trump administration was brought by the states of Washington and Minnesota.
The federal district judge in the Dapa case found that the states had constitutional standing to sue the executive branch. The main theory was that the states would have to use their resources on the undocumented people whom the order permitted to remain in the US, specifically by issuing them driver’s licences.
The US Court of Appeals for the 5th Circuit upheld this rationale for allowing the states to sue. The Obama administration asked the Supreme Court to overturn this, and the court took the case. Very probably, justices would have upheld the Texas judge’s decision as well.
The only reason we don’t know for sure is that, after Justice Antonin Scalia’s death, the justices split 4-4 on the Texas case. An equally divided decision means that the appeals court decision remains in effect.
The justices didn’t reveal how each voted in the 4-4 split. But it’s overwhelmingly likely that the divide followed partisan lines, with the liberal justices voting for the Obama administration and the conservatives voting for Texas.
The Texas precedent remains in place in the 5th Circuit. In the 9th Circuit, where Judge Robart sits, it is persuasive, but not settled law. Had Scalia lived, the court would presumably have reached the same result in the Texas case, 5-4 — in which case the states’ ability to sue would have been the law of the land.
The other way Robart’s order matched the Texas order was that both restrained the president, and hence the whole country. Robart cited the 5th Circuit for precisely this point.
The Obama administration had argued that the Texas judge abused his discretion by binding the whole country. The appeals court said pointedly that “the Constitution requires ‘a uniform Rule of Naturalization’”. On that basis, the 5th Circuit — and Judge Robart — concluded that it made no sense for different rules to govern immigration in different parts of the country. The Obama administration didn’t bring this issue to the Supreme Court. That might have been done for tactical reasons, but it at least implies that the administration conceded there was something odd about a checkerboard of rules for who can lawfully enter or remain in the US.
The events of last week support Judge Robart’s argument for uniformity. The idea that lawful visa holders could enter the US at Boston’s Logan Airport or at Los Angeles International, but nowhere else, makes a mockery of the immigration laws.
The other judges who bravely stayed the Trump executive order were trying to be modest. Judge Robart was being braver still — and more consistent in defending a uniform rule of law under the constitution.
If Trump’s executive order is unlawful and unconstitutional, it shouldn’t apply anywhere.
Of course, the underlying legal issue of whether the order really is unlawful is different in the two cases. In my view, the Obama order was constitutional, while the Trump order violates the constitution. Judge Robart also made a judgement on that question — and I think it was the right one, although the 9th Circuit and the Supreme Court could decide otherwise. That’s normal for every judicial decision.
Which brings us back to Trump’s attack on Robart as a “so-called judge” and on his order as “ridiculous”. It’s fine for the president to disagree with a judicial decision and appeal it. The word “ridiculous” is overstated and frankly childish, but for the president to use it doesn’t threaten the structure of the US constitution.
It is, however, a dangerous threat to the separation of powers for the president to question the legitimacy of a judge, whose role is enshrined in Article III of the constitution. The label “so-called” is more than a garden-variety insult. It suggests that judges who decide cases against Trump aren’t really speaking for the constitution.
They are. Robart’s order is a blow for the supremacy of the constitution as interpreted by the judicial branch, which has the duty to say what the law is. Trump had better get used to it. And civil society and the free press had better be ready to stand up for judges who take the chance of defying the president. Without them, our rights won’t be worth the parchment they’re written on.
By arrangement with Bloomberg-The Washington Post
Published in Dawn February 7th, 2017