Supreme Court

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

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


Gage Skidmore

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.

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