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.
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