General Washington, Meet Mr. Trump


Let’s get legal for a minute. Last night, the U.S. Ninth Circuit Court of Appeals refused to reinstate even temporarily the immigration travel ban, handing the Trump administration a defeat on one of its signature issues. For several reasons, it’s huge.

The Constitution creates three branches of government and gives certain powers to each branch. In this case, the Executive branch has the power to administer matters of immigration, as well as primacy in matters of national security. The Ninth Circuit decision in the case, improbably named Washington v. Trump, addressed whether this power has any limitation and, if so, whether the Judicial branch can restrain the Executive. The Court decided that it did indeed have the power to review and determine if the Executive Order is unconstitutional. Because if the courts can’t do it, who or what is there to stop an Executive from violating the Constitution?

This is not as obvious as it sounds. Lots of times, the Executive or Legislative branch cannot be checked by the courts. For example, the Executive has the exclusive power over foreign relations. Under the law, the courts have refused to get involved, calling it a political question. The government argued the same principle in this case.

Three Ninth Circuit judges speaking as one rejected the Government’s argument.

“Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).”

That’s the nub of it. The courts will step in when the constitutional rights of individuals are at stake. Make no mistake. Given the first few weeks of the new administration, a showdown over the limitation of Presidential power was inevitable. We can expect a lot of cases about Presidential power, and we can expect the courts to reel in the power of the executive, especially with one who has disdained the authority, competence and fairness of the judicial system.

© 2017 The Revolted Colonies ™



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  1. Marie Lopez

    Good one! So does it mean that citizens of Iran, who have no connection with the US by way of family ties, if affected by the ban, have a constitutional right to seek redress in a US court? Is this not really the overlapping effect of the Court`s decicion? It is interesting that Countries like Iran who has made it part of its policy to see to the destruction of other Nations and indeed, like many other Nations in the middleeast, refuses entry of certain nationals into their countries and supports terrorist organizations now have the rights of its citizens upheld by a US court. Common sense gone mad or American Justice? Lets see. Supreme Court decision awaitied, if there is to be an appeal before or after the full hearing before the 9th Circuit!

    • The Revolted Colonies

      “who have no connection with the US by way of family ties,”

      Not solely by family ties – there would have to be some other legitimate purpose for visiting, such as scholarship, work, etc.

      The administration declined to take the case to the Supreme Court. Instead they are pursuing their appeal before the 9th Circuit.

  2. David Goldblatt

    To be clear. Any person on American soil has constitutional protection. I get that and agree. When is an emigrate considered on American soil. At the airport? Without that foot on soil there is no protection. ” If the President feels there is a threat” he has the “responsibility” to prevent that threat. The courts cannot and should not assume what is a threat and what is not. That lies with the executive branch. Am I correct? Thx.

    • Marie Lopez

      Yes, i think you are right and that is my understanding of the Constitution. Thank you for your comments. I am relieved that I am not a “lone voice in the wilderness” on this one. So much anit-Trump feelings should not obscure the truth about presidential powers. It would be ridiculous for the Courts to arrogate to themselves the power to determine what a threat to our security is in these matters, that would be going too far.

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