Trump Administration Opposes Judicial 'Second-Guessing' of Executive Power in Travel Ban Case

[EasyAce]

Is Trump’s executive order banning travel from seven majority-Muslim countries subject to judicial review?
By Damon Root
http://reason.com/blog/2017/02/07/trump-judicial-second-guessing-of-execut/print

The Trump administration has told the U.S. Court of Appeals for the 9th Circuit that the federal courts have no business taking
"the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad
grants of statutory authority."

This statement came as part of the government's brief asking the 9th Circuit to lift the nationwide temporary restraining order (TRO)
that currently blocks the enforcement of President Donald Trump's controversial executive action banning travelers from seven majority-
Muslim countries. The 9th Circuit is scheduled to hear arguments today about whether or not that nationwide block should be lifted.

The TRO came in response to a constitutional challenge filed against the Trump administration by the states of Washington and Minnesota.
Those states allege that Trump's travel ban violates the constitutional guarantees of equal protection, due process, and the non-establishment
of religion. They also challenge the president's statutory authority to act in this manner. Federal Judge James Robart issued the TRO last
week after deciding that the state challengers had a likelihood of succeeding on the merits. The executive order was then blocked from
going into effect while the underlying legal challenge proceeds in federal court.

The Trump administration wants the block lifted and the travel ban restored. Among other things, it maintains that because the president
acted here in the name of national security, his executive order is effectively beyond the reach of "even limited judicial review."

Over the weekend on Twitter, Trump himself cast even greater aspersions on the authority of the federal courts to sit in independent judgment
of his executive actions. After

denouncing Judge Robart as a "so-called judge" whose opinion "essentially takes law-enforcement away from our
country," Trump went on to add, "Just cannot believe a judge would put our country in such peril. If something happens blame him and court
system."

Setting aside the constitutional merits of the legal challenge, it seems to me at the very least that the Trump administration is on shaky ground
when it claims that the travel ban should be immunized from judicial review on account of its ostensible connection to the president's "formal
national-security judgment."

After all, the federal courts have repeatedly reviewed executive actions that were carried out in the name of national security. As the Supreme
Court recently stated in Holder v. Humanitarian Law Project (2010), "national security and foreign relations do not warrant abdication of the
judicial role."

For example, consider Rasul v. Bush (2004), in which the Supreme Court held that U.S. federal courts have jurisdiction to review "the legality
of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not 'ultimate
sovereignty.'" That case recognized habeus corpus rights for non-citizen detainees held at the U.S. military base at Guantanamo Bay, Cuba. The
Bush administration had argued that the federal courts had no business nosing around down there in the first place.

The next move in the legal battle over Trump's travel ban rests in the hands of the 9th Circuit, which is expected to decide this week whether
or not to leave the TRO in place. It seems likely, however, that this matter will soon be on the fast-track to the Supreme Court.

--Damon Root is a senior editor of Reason magazine and the author of Overruled: The Long War for Control of the U.S. Supreme Court

[r9etb]

Is Trump’s executive order banning travel from seven majority-Muslim countries subject to judicial review?

I certainly hope so -- and I say that without regard to who might be president, and without regard to the merits of this particular Executive Order.

If a president attempts to do something that is perceived to be outside his legal authority, a lawsuit is a right and proper response to it.

For the "Travel Ban" case .... Trump can complain all he likes, but the blowback he's facing is his own damned fault.  A little preparation and warning would have gone a long way to removing fuel before the flames were even lit.  Instead....

[EasyAce]

I certainly hope so -- and I say that without regard to who might be president, and without regard to the merits of this particular Executive Order.

If a president attempts to do something that is perceived to be outside his legal authority, a lawsuit is a right and proper response to it.

Amen!

As a personal note: I've read Damon Root's book on the Supreme Court, Overruled. It is one of the best books I've read about
the high court in an extremely long time. I would recommend it as imperative reading for any federal officeholder (and maybe a
sitting justice or two), but I'm not sure it wouldn't go into their C.S. files post haste. 

(But, then, I've been recommending Mr. Gene Healy's The Cult of the Presidency: America's Dangerous Obsession with Executive
Power and its followup, False Idol: Barack Obama and the Continuing Cult of the Presidency, too, and I'm not convinced
many have actually taken me up on the recommendation no matter how imperative those two books happen to be.)

[Cripplecreek]

I certainly hope so -- and I say that without regard to who might be president, and without regard to the merits of this particular Executive Order.

If a president attempts to do something that is perceived to be outside his legal authority, a lawsuit is a right and proper response to it.

For the "Travel Ban" case .... Trump can complain all he likes, but the blowback he's facing is his own damned fault.  A little preparation and warning would have gone a long way to removing fuel before the flames were even lit.  Instead....

IMO anything not done by legislative process should be subject to judicial review.

I think most here are quite pleased that the US Supreme court overruled the Bush administration when the administration demanded that Texas call off the execution of murdering rapist Ernesto Medellin.