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Donald Trump

How these three judges gave Trump a lesson in the power of the judiciary

PUBLISHED : Friday, 10 February, 2017, 3:08pm
UPDATED : Friday, 10 February, 2017, 10:13pm

US President Donald Trump, meet the judicial branch.

You like fast? It prefers to take its time. You were elected to disrupt, but it insists on order.

Most importantly, you have pledged to move single-handedly to protect the country and change its immigration priorities. The federal judiciary in the weeks-that-feel-like-months of the Trump presidency has pushed back in a series of decisions that make clear it has a role to play.

Only history can know if the unanimous decision from a panel of three very different federal judges will ultimately be considered a case of judicial overreach, a self-imposed mistake caused by the administration’s lack of precision, or something more significant.

But for now it served as a powerful reminder that judges demand their designated part, even if in most cases it is to defer to the president on matters of national security.

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The judges fairly bristled at the government’s contention that courts had no business weighing Trump’s executive order temporarily banning refugees and those from seven mostly Muslim countries.

“The government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches - an uncontroversial principle that is well-grounded in our jurisprudence,” the court’s unsigned opinion said.

“Instead, the government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.”

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That, the court said, “runs contrary to the fundamental structure of our constitutional democracy.”

That the opinion was unsigned seemed intended to emphasise the unanimity of the diverse panel: Judge William Canby, 85, a Jimmy Carter nominee with more than 36 years of experience; Judge Richard Clifton, 66, nominated to the bench in 2002 by President George W. Bush; and Judge Michelle Friedland 44, a Barack Obama nominee who became a judge less than three years ago.

They were deciding only whether to lift a temporary halt to the executive order, issued last Friday by Judge James Robart, another Bush nominee. It could have been a one-paragraph order, but instead it ran for 29 pages.

It gave the president’s lawyers almost nothing.

Washington and Minnesota had standing to sue, the judges decided, because the ban had a detrimental effect on the rights of students and faculty at the public universities. Actions of the executive branch designed to promote national security are not immune from judicial inspection, the court continued.

To have Robart’s order dissolved, the burden was on the government to show it was likely to win on the merits.

But the judges said there were serious questions about whether the order provides the due process guarantees required, “such as notice and a hearing prior to restricting an individual’s ability to travel.”

The government claimed that lawful permanent residents would not be affected; the court said there was no guarantee. The word of White House Counsel Donald McGahn was not enough, the judges said.

“We cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings,” the decision said. That argued against leaving even part of the order in place.

The court said there was not enough in the record to decide whether the order amounted to religious discrimination, which would violate the Constitution’s Establishment Clause prohibition of any “law respecting an establishment of religion.”

But Trump’s words came back to haunt him. “The states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban,” the judges wrote.

“We reserve consideration of these claims until the merits of this appeal have been fully briefed.”

The court referred to the “massive attention” the case has received, and said it had to weigh interests.

“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies,” the judges wrote. “And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”

Parts of the decision are sure to be controversial. While it said courts defer to the president, it seemed to demand an explanation before the president may act preemptively.

“The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” the judges said.

Again, they said: “Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all.”

Despite the lopsided nature of the ruling, it also seemed to offer pointers for the administration. A legal strategy less dismissive of the court’s role might have helped. Less haste in drafting the order, issued just a week after Trump’s inauguration, might have filled some of the holes the judges saw.

Before his lawyers could decide on their next move, Trump issued an all-caps tweet: “SEE YOU IN COURT,” seemingly at odds with his recent criticism of judges as “political.”

The full appeals court? The Supreme Court? It was an acknowledgement, if nothing else, of the role the judiciary holds in how his presidency will proceed.