Late on Friday afternoon, US District Judge James Robart, a George W. Bush appointee, issued a temporary injunction against President Trump’s immigration and refugee executive order. The order applied nationally and broadly; it stopped Trump’s plans on refugees, as well as admission of those from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order made no legal argument whatsoever about the case – instead, the judge simply declared that the plaintiffs, the states of Washington and Minnesota, were likely to prevail on the merits. The only indicator of Robart’s position came during oral arguments, when he slapped the government’s lawyer for linking terrorism to the executive order: Robart said that Trump’s order wasn’t legal unless it was “based in fact, as opposed to fiction,” explaining that no terrorist attacks were perpetrated by people from the seven named countries.
This is legally ridiculous.
It is not necessary for the executive branch to demonstrate that a policy it adopts prevents a harm that has already occurred. The executive branch has broad latitude in refugee and immigration policy for purposes of national security. The Department of Justice has rightly argued that judges do not have access to classified risk information as the president does; furthermore, foreign citizens abroad do not have Constitutional rights.
All of this led President Trump to lash out on Twitter at Judge Robart:
First, Trump has every right to criticize the court decision. The same media going apoplectic over President Trump’s criticism of a court decision nodded along as Barack Obama openly lied about the Citizens United decision in front of members of the Supreme Court at a State of the Union Address, then slammed Justice Alito for having the temerity to shake his head at the untruth.
Second, Trump has a habit of attacking anyone who disagrees with him. It would have been nice for Trump to attack the judge on the grounds that he has exceeded his legal power, not on the grounds that Robart’s policy will be damaging to national security. Down that logical road lies authoritarianism: it’s always easy for the executive branch to violate rights in the name of collective safety, then blame judges for undermining safety if something violent happens. Robart may be wrong on policy and law, but suggesting that judges “own” the political consequences of legal decisions is awful for the functioning of the judicial branch.
With all of that said, is this a Constitutional crisis, as the media seem to be suggesting? Absolutely not. So far, there’s been no evidence that Trump is ignoring the judicial ruling. Even if he did, Congress could quickly strip him of his power to do so. The Constitution was written with gridlock and rough interplay in mind. The judiciary should know that its review of legislative and executive acts can be checked, too. And it can certainly be criticized by members of the other branches, including the president.