Judicial Review Suffers Self-Inflicted Wound

I don't object in the slightest degree to Trump's executive order coming under judicial review for its constitutionality. I do think the 9th circuit should probably have at least mentioned the law he was citing as granting him the legal authority.
(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.
This would be roughly like me being brought into court for carrying a firearm in Georgia, presenting my license to do so, and citing the sections of the Official Code of Georgia, Annotated, that specifically permit someone with such a license to carry such a firearm -- and then having the court rule against me without acknowledging the law existed.

Also, its reasoning would have to be that my protected exercise of free speech proved that I was such a bad person that I must be denied what would be legal for anyone else in my position.

Judicial review can be a good thing, but this is a poor example of it.


Texan99 said...

Well, see, if they had to argue about the relevant law, they'd have been hard-pressed. The policy area is much safer ground.

I'd like to think that the TRO will be overturned at the S. Ct., but Trump may elect to moot the controversy and start fresh with a new executive order.

Grim said...

I would not have thought that it was possible to craft an opinion against Trump that any of the four progressives on SCOTUS would vote to overturn. (Nor, if I were him, would I bet that this possibility existed even now.)

E Hines said...

I'm not sanguine about the Supremes, even were Gorsuch seated by then. The 9th repeatedly cited Boumediene v Bush, which should be irrelevant to the EO other than the 9th dragging this red herring, as showing a violation of due process by the EO (itself a red herring, but this is the 9th).

Justice Anthony Kennedy wrote the opinion for Boumedienne; he can't be relied on to uphold the EO, much less to rule against the idea that judges get to review policy rather than law.

Eric Hines

Grim said...

Yeah, Kennedy was a clear risk from the moment the original 9th circuit judge decided that the issue was whether the policy had a "rational basis." That's Kennedy's favorite thing of all, finding that conservative policies lack a rational basis and thus cannot possibly be part of the law in any part of any civilized country.