After the 9th Circuit refused to vacate a TRO issued by a federal judge in Washington State as to Donald Trump’s first executive order, I suggested that those judicial decisions not only were legally unjustified, they presented a threat to Trump’s lawful executive powers and that dropping and reworking the executive order would be a mistake:

To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

And so it came to pass, with a narrowed and reworked second executive order being enjoined by district court judges in Hawaii and Maryland.

There’s an interesting article at the LawFare blog, written by Benjamin Wittes and Quinta Jurecic, The Revolt of the Judges: What Happens When the Judiciary Doesn’t Trust the President’s Oath. The central thesis of the post is that judicial aggressiveness towards the executive orders may reflect distrust of Trump by many in the federal judiciary. That distrust, in turn, may be leading judges to cast aside the legally required deference to the political branches that the Constitution, legislation, and Supreme Court precedent require.

This “revolt” is evidenced in several district court and one 9th Circuit rulings against Trump on the first and second executive orders on visas and refugees. Wittes is brutally correct that the legal weaknesses of those opinions against Trump suggest something else is going on:

To put the matter bluntly: why are so many judges being so aggressive here?

The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.

Focusing on the two most recent district court opinions on the second executive order, Wittes writes:

We don’t mean here to do an exhaustive legal analysis of either court’s work. But suffice it to say that you don’t have to be a Trumpist to have questions. The Maryland opinion seems significantly stronger than the Hawaii opinion, but both have substantial holes….

… both the Bybee dissent in the 9th Circuit en banc and commentary by Josh Blackman and Peter Margulies on this site should give commentators at least a little bit of pause on a number of different substantive grounds:

First, the Establishment Clause analysis in both opinions is simply too glib. Blackman makes a powerful case that courts just don’t normally do Establishment Clause analyses in visa issuance cases involving people abroad. And there certainly doesn’t seem to be any kind of working rule that the government must have a secular purpose of the type that Lemon v. Kurtzman normally requires in situations like these.

Moreover, Bybee makes a persuasive case that the the 1972 decision of Kleindienst v. Mandel—in which the Supreme Court held that courts should not look behind a facially valid purpose on the part of the political branches with respect to visa issuance policies—deserves, at a minimum, more attention than these district courts (and the 9th Circuit panel) are now giving it. Whether it truly controls, as he argues, may be a closer question given some other Supreme Court cases, but the ease with which the courts are waving it away suggests at a minimum that a large number of judges are getting well out ahead of settled law.

Our point here is not that the district judges are clearly wrong. It’s merely that they are not clearly right—on a whole lot of points. And in the face of real legal uncertainty as to the propriety of their actions, they are being astonishingly aggressive.

The Bybee dissent referenced is what I wrote about concerning the 9th Circuit’s decision not to re-hear en banc a three-judge panel decision refusing to stay the the Washington State district court TRO of the first executive order. The Dissent by Jay Bybee, joined by four judges from across the political spectrum, wanted the full court to hear the case because of egregious legal error in refusing to defer to the executive branch. Read the whole thing, it’s worth is. Here’s an excerpt:

BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).

This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error….

The panel’s errors are many and obvious. Had it applied the proper standard, the panel should have stopped here and issued the stay of the district court’s TRO. Instead, the panel opinion stands contrary to well-establishedseparation-of-powers principles. We have honored those principles in our prior decisions; the panel failed to observe them here. If for no other reason, we should have gone en banc to vacate the panel’s opinion in order to keep our own decisions straight….

As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.

The Bybee dissent then went on to decry personal attacks on the judges involved in the prior decisions, and the claims that they were motivated by politics:

Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

Yet it appears there are judges who have decided to take matters into their own political hands. Wittes adds that possibility:

Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

Prof. Josh Blackman writes of the above analysis:

Judges in Washington, Maryland, and Hawaii are signaling that they are not going to treat President Trump as if he were any other President. The sorts of analyses we’ve seen are absolutely insane under long-standing law….

But maybe I am wrong to assume precedent applies to Trump. In a must-read post, Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office, the usual rules do not apply to him. We are witnessing, they note, a “revolt of the judges.”

This demise of judicial neutrality is truly regrettable. Our Constitution already has a safety valve in the case of a crazy President: the 25th Amendment. Courts should not twist and turn established law as a form of self-help. As I wrote in Politico, “The judiciary should not abandon its traditional role simply because the president has abandoned his.”

This likely judicial distrust of Trump, at least among some at the district court level, is why I pointed out after 9th Circuit decision not to lift the injunction that Trump needed to pursue an appeal to the U.S. Supreme Court, and not to expect that reworking the executive order would satisfy judicial hostility, President Trump must not back down on immigration Executive Order:

The decision of the 9th Circuit Court of Appeals to leave in place a broad Temporary Restraining Order freezing President Trump’s Executive Order on visas and refugees presents a serious threat to the constitutional and statutory authority of the presidency.

By leaving an overly broad TRO in effect that protects even persons who are abroad with no prior connection to the United States, and by refusing to narrow the TRO, the 9th Circuit effectively extended to such persons U.S. constitutional due process rights both to apply for a visa and in the visa process….

I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.

That would be a grievous mistake.

The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

If the judiciary is so hostile to Trump, then there is no reason to think that hostility will stop with the immigration executive orders. So the fight over the executive orders may really be a proxy fight over whether Trump will be permitted to exercise the executive powers vested in the office.

In recent comments after the latest round of TROs halting the second executive order, Trump expressed regret that he had abandoned the first executive order. He said his gut told him to fight it, but he was advised that the better course was to rework it. He should have gone with his gut.


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