Donald Trump

Foreign Policy is Not For the Courts to Determine

The federal judge who halted President Trump's travel ban overreached.

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Who's foreign policy?
Alan Crosthwaite/Dreamstime.com

Last week, in a public courtroom in the federal courthouse in Seattle, the states of Washington and Minnesota — after suing President Donald Trump, alleging injury caused by his executive order that suspended the immigration of all people from seven foreign countries — asked a federal judge to compel the president and all those who work for him to cease enforcing the order immediately. After a brief emergency oral argument, the judge signed a temporary restraining order, which barred the enforcement of the president's order everywhere in the United States.

The president reacted with anger, referring to the judge as a "so-called judge," and immigrant rights groups praised the judicial intervention as a victory for the oppressed. The president meant, I think, that Judge James L. Robart had not acted properly as a judge by second-guessing him — that he had acted more like a politician; and the immigrant rights groups felt, I think, that the United States was once again a beacon of hope for refugees.

Here is the back story.

A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries.

When the president exercises powers granted to him by the Constitution or federal statues or when Congress passes bills, one cannot simply sue the government in federal court because one does not like what has been done. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call "standing." Standing means that the plaintiff has alleged and can most likely show that the defendant has caused the plaintiff an injury in fact, distinct from all others not in the case.

Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump's order but rather the governments of two states, each claiming to sue in behalf of people and entities resident or about to be resident in them. The court should have dismissed the case as soon as it was filed because of long-standing Supreme Court policy that bars federal litigation alleging harm to another and permits it only for the actual injury or immediate likelihood of injury to the litigant.

Nevertheless, the Seattle federal judge heard oral argument on the two states' emergency application for a temporary restraining order against the president. During that oral argument, the judge asked a lawyer for the Department of Justice (DOJ) how many arrests of foreign nationals from the seven countries singled out by the president for immigration suspension there have been in the United States since 9/11. When the DOJ lawyer said she did not know, the judge answered his own question by saying, "None."

He was wrong.

There have been dozens of people arrested and convicted in the United States for terrorism-related crimes since 9/11 who were born in the seven countries. Yet even if the judge had been correct, his question was irrelevant — and hence the answer meaningless — because it does not matter to a court what evidence the president relied on in this type of order. This is the kind of judicial second-guessing — substituting the judicial mind for the presidential mind — that is impermissible in our system. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy and because Congress has assigned to the president the power of immigration suspension as a tool with which to implement foreign policy.

These rules and policies — the requirement of standing before suing and the primacy of the president in making foreign policy — stem directly from the Constitution. Were they not in place, then anyone could sue the government for anything and induce a federal judge to second-guess the president. That would convert the courts into a super-legislature — albeit an unelected, unaccountable, opaque one.

I am not suggesting for a moment that the courts have no place here. Rather, they have a vital place. It is to say what the Constitution means, say what the statutes mean and determine whether the government has exercised its powers constitutionally and legally. It is not the job of judges to decide whether the government has been smart or prudent, though.

One of the arguments made by the state of Washington to explain why it had standing was laughable. Washington argued that corporations located in Washington would suffer the irreparable loss of available high-tech-qualified foreign employees if the ban were upheld. Even if this were likely and even if it were provable, it would not establish injury in fact to the government of Washington. When pressed to reveal what entity Washington was trying to protect, it enumerated a few familiar names, among which was Microsoft.

Microsoft? The government of the state of Washington is suing to protect Microsoft?! Microsoft could buy the state of Washington if Starbucks were willing to sell it.

I jest to make a point. The rule of law needs to be upheld. Carefully paying attention to constitutional procedure protects personal freedom. In similar environments, the late Justice Antonin Scalia often remarked that much of what the government does is stupid but constitutional and that the courts' only concern is with the latter.

The DOJ is now challenging the Seattle restraining order in the 9th U.S. Circuit Court of Appeals, and this case may make its way to the Supreme Court. Will federal judges be faithful to the rule of law? We shall soon find out.

COPYRIGHT 2017 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

NEXT: The Sessions Debacle, the Travel Ban SNAFU, and Trump's Residency Between Your Ears: Matt Welch on Red Eye

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  1. Yep. No refugee terrorists. None. Nada. Zero…

    http://www.sessions.senate.gov…..566A09079E

    Oh…

    1. There is a reason Obama wanted to open our country to the people least likely to assimilate and most likely to cause disruption.

      1. Short answer: he hates America. Its that simple. How DARE we elect him President twice – just to CONSTANTLY disappoint him!!

  2. Moar like Judge Yokelitano, amirite?

  3. Thank you Judge Nap. The law is very clear on the matter. It should be a 8-0 win for Trump if it goes to the SC before Gorsuch is seated and 9-0 if he is.

    All of the arguments I heard against the order were real stretches of tangential statues and precedents while they avoided the plain wording of the law granting the president this power. A whole lot of ‘what I wish the law said’ from people who were silent when other presidents did the very same.

    1. But where is the plain wording in the Constitution that gives the federal government the power to regulate immigration in the first place?

      1. It takes a few seconds of Googling:

        http://hrlibrary.umn.edu/immig…..pter2.html

        The Court eventually found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles. The Chinese Exclusion Case (Sup.Ct.1889) was the first case to hold that the federal power to exclude non-citizens is an incident of national sovereignty. […] Fong Yue Ting v. United States (Sup.Ct.1893) explicitly held that the power to expel or deport (now “remove”) non-citizens rests upon the same ground as the exclusion power and is equally “absolute and unqualified.”

    2. Yes, and this should have been completely obvious to anyone who even marginally looked into how immigration law works.

      What is distressing is that the idea that visitors and immigrants have some kind of Constitutional right to non-discrimination and entering the country even has made it into the public discussion.

      Even in European countries with big refugee problems, there is no assumption that, say, Syrians have a legal right to enter those countries; it’s only viewed as a moral obligation. Likewise, other countries have absolutely no problem giving preference to educated and skilled workers, even if that results in disparate outcomes.

      As is often the case, the US ends up far to the left of many European countries.

  4. Gorsuch wrote an article to this effect ten years ago for NRO. They recently reprinted it. Very measured, even though he sort of singles out the left as the main proponents of this type of overreach….

  5. This magazine has become a shameless Trumpkin rag, I’m done with it!

      1. *Unrecognized argument ‘mode’*

    1. Ass-door

  6. I hadn’t contemplated the standing issue because most of the time I presume the people filing have an actual cause of action. I forgot what sort of mess we’ve been dealing with. If the 9th were not the 9th, I’d predict the case being laughed out of court.

    1. “Often in error, NEVER in doubt!!”

  7. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy

    IIRC, Obama used that argument to explain why he didn’t need Congressional approval for his dynamic intervention in Libya. It’s foreign policy! With bombs!

    1. The counter argument to that is that when you start bombing people that’s war, where the power to declare was given directly to congress.

    2. Except the War Powers Act imposes certain limitations on the President’s use of military action without a formal declaration of war.

  8. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call “standing.”

    Bullshit. You’d have to read deep between the lines of article 3, section 2 to find a standing requirement. Standing is an abomination that serves to protect unconstitutional laws. No one should have to suffer harm in order to challenge government overreach in court.

    That being said, in this case, the court acted inappropriately. The ban is unethical (I’m an anarchist), but it’s also Constitutional.

    1. Case or controversy, or whatever I see wood chippers thinks, fuck established principles of law.

    2. You’d have to read deep between the lines of article 3, section 2 to find a standing requirement.

      Why do you need to read the Constitution at all for standing? Courts can choose which lawsuits to dismiss, and lawsuits that don’t meet the “standing” requirement are simply automatically dismissed, due to many centuries of precedent.

  9. Does Microsoft get many hi tech employees from there? If they do would be under green cards and immigrant visas i think.

    Not sure how banning refugee program temporarily is hurting Microsoft.

    At worst the problem with eo is the green cards and immigrant visas. Everything else is legit

    1. Actually blocking Syrians only helps Microsoft…

      1. *narrows gaze*

  10. What about 8 usc 1182 section f

  11. Yeah, I don’t know how in the world they’re going to be able to successfully make the “It was just fine when Block Yomomma did the same thing, but it’s illegal when Trump does it” argument stick in front of any sort of real court with many justices on it.

  12. Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump’s order but rather the governments of two states

    Something something ‘standing’…

  13. I’m a little disappointed in the judge…not even a brief mention of the 1965 law that is very much applicable to this case.

    1. If the President’s actions are deemed to be in violation of a law wouldn’t that be a matter for Congress, not a lower court?

      1. It’s the courts’ role to say what the law is. Congress can always amend a statute if it disagrees with a court’s interpretation.

        1. Yeah, if the executive is violating the law, it is exactly the court’s responsibility to put a stop to it.

          Congress can get into the act if they want to remove the President, or override his actions with new laws. But violations of existing laws are kinda the entire point of the court system.

    2. The 1965 law applies to the allocation of immigration visas, not to the admission into the country. And its intent was never to create a legal right to non-discrimination of non-citizens entering the country.

      In fact, the 1965 law should be overhauled by Congress; during its passage, the assumption and promise was that it wouldn’t change the demographic composition of the US substantially, but that is exactly what it has been doing.

      It should be replaced with a law that prioritizes immigration based on whether immigrants were schooled in a system with compatible liberal and democratic values, whether they speak English well, what their earnings potential is, and how much money they have. That’s how other nations do it, and it is very sensible.

  14. You don’t get to sue the government to stop bombing Germany because it hurts the value of your Volkswagen stock. The power of the president in foreign policy in regards to immigration is abundantly clear, and the overreach by the judge in this case is so egregious I believe he should be reprimanded.

    1. Among many things, courts protect people from the arbitrariness of laws, either by Legislative or Executive branches. Had the Executive Order simply placed a temporary ban on new refugees, I would not argue. However, EO was so broad, it touched people who have been given permission to enter or are already legal residents. By preventing them from entering the country, the Executive Order disregarded the validity of laws and procedures in place at the time people have been granted the entry/residence. This is the legal justification for putting temporary restraining order on the EO.

      1. Judge Robarts did not not give a legal justification in granting the TRO.

  15. Will federal judges be faithful to the rule of law?

    I wouldn’t hold my breathe.

  16. Hey, judge. Can you point out the passage in the Constitution that gives the federal government the power to regulate immigration? The way I read it they have the power to regulate naturalization and citizenship but not immigration.

    1. Hm, then I guess we have to treat all immigrants as foreign invaders. Damn, libertarians are less pro-immigrant than I thought. But you’re right, nothing in there about it. Shoot on sight!

      1. If that’s what you choose to do, you’d have to defend yourself in court after being arrested for murder or at least attempted murder.

        But you agree that the federal government was never explicitly granted the power to regulate immigration, yes?

          1. Summary: The Supreme Court says so. Plus commerce clause and furthermore.

            Yeah, great job.

            I asked for the specific provision in the constitution that explicitly gives the federal government the power to regulate immigration. There is none. It’s implied and/or assumed, but not explicit.

        1. Juice is right. Only the military can prosecute the war on foreign invaders. The populace may not.

          1. in case you missed it… sarcasm.

          2. And the Commander-in-Chief of the military is…the President!

            (of course, that something in under military jurisdiction doesn’t mean that guns will be a’blazing, so even this interpretation doesn’t fully change matters ? you’d just JAG running immigration courts)

      1. The federal government as no “inherent power.”

  17. Delightful to read real sense in the matter – unlike some other Reason articles. Well explained and well done! 10/10

  18. It is not the job of judges to decide whether the government has been smart or prudent, though.

    Given the theme throughout on separation-of-powers and distinct constitutional mechanisms, I almost feel that an added sentence or parenthetical here ? pointing out that it’s the specific job of voters to decide whether the government has been smart or prudent (along with Congress to a degree in terms of impeachment rules) ? could have worked well.

  19. Obama acted upon specific intelligence, put forth a date and didn’t campaign on a capricious reason (Muslim ban) before using the power of the office that indeed, can be checked by the judiciary. Keep in mind that these inbound Muslims didn’t just show up at a ticket counter the day before and they generally don’t arrive broke or without arrangements having been made. If the court holds that the injured party is likely to prevail and suffers irreparable harm (employers, landlords, state franchise tax dept) and no immediate threat can be identified – indeed, if the door’s been open for years, and nothing ties this group to an immediate threat then the court can weigh what is in the public interest and stay the order. The order was poorly written, not reviewed by GAO, and because it harms US citizens’ interests immediately, a fed judge can overrule the executive. Happens all the time.

    I’ve brought foreign techs to the US to train on equipment being installed abroad. One was Muslim in fact (Philippines). I’ve taken classes from PhD candidates here on non-permanent visas. I’d be suing if I bought a ticket for someone issued a visa and couldn’t open a cancer treatment clinic. And some of the folks denied entry after jumping through 2 years of hoops to do so actually worked for our military. WTF?

    Yes, protect the country, but do it presidentially.

    1. muslim not mentioned in order, just the 7 countries, they only have 15% of Musllims in world,..duh.

  20. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

    http://freedomoutpost.com/2015…..s-growing/

  21. here, here,..sanity, and RULE OF LAW, something that is starting to go missing, we need it back, then we can deal with stupidity…

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