Robart that very same day then issued a national, and indefinite, halt to the travel order. It came in the form of a nonspecific written opinion, in which he failed to explain what exactly the travel order violated. He did not mention any statutes and did not spell out what part of the Constitution had been offended. The due process clause? The establishment clause? The equal protection clause?
Four days later, a three-judge panel on the Ninth Circuit heard the appeal. A mere two days later it upheld Robart, claiming the ban violated several parts of the Constitution. The Ninth Circuit was so eager to gets its hands on this case that it tried to sideline Robart—leading to confusion over who was actually handling the suit.
All these proceedings were moot in any event, since on March 6, the White House issued a replacement order, which applied to five majority-Muslim countries but also to North Korea and Venezuela. Hawaii sued to stop the new version two days later, and within a week a federal judge in Hawaii—Derrick Watson—had issued another nationwide halt. The Ninth Circuit in June upheld his block. The Fourth Circuit Court of Appeals also got in on the act, and in May itself upheld a nationwide block on the ban. That appeals court completely ignored the statutes in question, in which Congress provided presidents significant executive authority over immigration policy. It instead jumped straight to a claim that Trump had ravaged the Constitution, excoriating the ban as one that “drips with religious intolerance.” In finding this, it relied on things Trump had said on the campaign trail rather than the actual text of the order or Justice Department court filings. A third version of the ban came out in September. Opponents promptly sued and stopped it yet again.
It took the Supreme Court to put an end to the silliness; in early December, seven of its nine justices voted to allow the ban to take effect, pending the ongoing legal challenges. And in June 2018, the Supreme Court upheld the third version of the ban, on the grounds that Trump had clear and broad authority under the Immigration and Nationality Act to suspend the entrance of noncitizens to the country. Chief Justice John Roberts cited the clear text of the law, which allows for presidents to “suspend the entry of all aliens or any class of aliens” as they see fit. Roberts wrote that the provision “exudes deference to the president in every clause.” The opinion also noted that as the order said nothing about religion, it presented no constitutional concerns.
The high court’s ruling was obvious to anyone who had read the law and who knows that a president’s authority is at its strongest when he acts with congressional consent. Which only highlighted all the more the prior year of judicial hysteria and claims of constitutional abuse.
* * *
The travel ban drama was a great case study in just how willing the judicial Resistance was to break norms in aid of thwarting Trump. The problem wasn’t that the courts had come up with flawed opinions. The problem was that they’d ignored all the usual safeguards that are meant to protect against frivolous lawsuits and flawed opinions. And it wasn’t just one or two judges indulging in occasional reckless behavior. Dozens of judges and significant numbers of appeals courts began routinely trashing basic judicial norms. The practice has become so overt that the Supreme Court has on occasion felt compelled to chide the lower courts for ignoring first principles.
Take the bedrock doctrine of “standing”—the constitutional requirement that a plaintiff must show actual harm to be allowed to bring a lawsuit. Standing is crucial for deterring political lawsuits; we don’t want courts becoming a venue for settling partisan disputes. Yet Resistance judges are so eager to allow cases against Trump and his administration that they are granting “standing” to anything with a heartbeat. A huge number of the plaintiffs who filed suit against the Trump travel ban had only the barest claim that the policy had harmed them—yet judges allowed the suits to proceed.
A great example came in March 2018, when U.S. District Judge Peter Messitte—a Clinton appointee—ruled that District of Columbia Attorney General Karl Racine and Maryland Attorney General Brian Frosh had legal standing to sue Trump over the business dealings of his Washington, D.C., hotel. The lawsuit claims Trump has violated the Constitution’s “emoluments clause”—an obscure provision that bans public officials from accepting “any present” from “any King, Prince or foreign State” without “the Consent of the Congress.” The Founders included the clause out of an eighteenth-century concern that U.S. ambassadors might be corrupted by fancy presents from European rulers. The clause has barely been talked about since.
The critics argue that the clause restricts Trump from benefiting in a way from money connected to a foreign state. They insist that any time a foreigner rents, say, a ballroom in a Trump hotel, the president is breaking the clause. Put aside that nobody has ever applied this to prior presidents—many of whom operated businesses while in office, which likely had foreign clients. Put aside that the money that goes to Trump’s Washington hotel is not a “gift”—but rather payment for services rendered. And put aside that the Justice Department has said the emoluments clause does not apply to private business—only to benefits received in a public capacity.
The bigger issue are the words “without the consent of the Congress.” To the extent courts had ever considered the emoluments clause over the past 200 years, it was understood that only Congress could enforce the provision. That’s why a federal judge in 2017 dismissed a separate lawsuit brought by a liberal watchdog against Trump over the emoluments clause, writing: “Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power.” Yet Judge Messitte took the unprecedented step of granting standing to two Democratic attorneys general, with no connection to Congress.
Or take the principle of constitutional avoidance—a doctrine drilled into law school grads. That doctrine emphasizes that federal courts should always seek to resolve a suit on the basis of a statute or regulation, and only turn to the Constitution as a last resort. The U.S. Supreme Court has routinely directed the lower courts to proceed in this manner. The high court understands that shouting “constitutional violation” is too easy a way to proceed on a lawsuit, since the Constitution is broad. Its directive is a recognition that often Congress will with specific language grant a president broad powers in a certain policy area. That grant makes it harder to claim that a president has violated the Constitution as he goes about his duties. The high court has explained that constitutional avoidance is necessary to ensure courts accord a “just respect” to both the legislative and the executive branches.
The travel ban mess illustrated perfectly what goes wrong when courts ignore this. District court judges and appeals courts instantly ran to the Constitution, claiming Trump had violated everything from due process to the First Amendment. It took the Supreme Court to point out that Congress had granted the president sweeping powers with its Immigration and Nationality Act—which made the constitutional issues in that issue moot.
The Supreme Court has meanwhile had to rebuke Resistance judges that have taken to ruling on what Trump says, rather than what Trump does. When the Fourth Circuit Court in May 2017 upheld the block on Trump’s travel ban, it said it was likely unconstitutional because it was driven by anti-Muslim sentiment. In backing up this opinion, the court cites “then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith.” The Fourth Circuit utterly disregarded the stated policy arguments for the ban.
In the Supreme Court’s own ruling on the final travel ban, Chief Justice Roberts smacked down this extralegal approach. “The issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility,” wrote Roberts (italics added). “In doing so, we must consider not only the statements of a particular president, but also the authority of the presidency itself.”
Roberts went on to point out that the consequen
ce of holding a president to anything he might have ever said (rather than what he did) would be to bar him from fulfilling his basic duties.
The high court majority also took a shot at lower courts’ decision to drag in an infamous if completely unrelated case: Korematsu. That’s the Supreme Court’s 1944 decision upholding FDR’s roundup and internment of people of Japanese descent. Resistance judges claimed Trump had done the same here—using a vague security threat to justify excluding people from U.S. society. The majority labeled this sheer baloney, stating that “Korematsu has nothing to do with this case,” since that suit had called for the internment of American citizens “solely and explicitly on the basis of race.” Trump’s order bore no relation.
Perhaps the worst abuse has been the flurry of nationwide injunctions. The federal government has ninety-four district courts, which are the first stop for any federal lawsuit. The opinions from these district court judges can be appealed up to their respective circuit court (thirteen in all). And circuit court decisions can be appealed to the Supreme Court. It’s long been understood that when a court issues a ruling, it applies only to the people who appear before it or to the area that the court covers. There’s a constitutional issue at stake here. The Constitution says that a plaintiff must have standing in order to sue. Yet by definition, national injunctions impose law on millions of people who have no such standing.
The United States is a big place with a lot of judges, and the system is meanwhile specifically designed to encourage a bit of conflict. A district court judge in, say, Alaska is only required to follow the decisions of the Ninth Circuit. Each of the thirteen circuits is allowed to go their own way. Circuits routinely come up with conflicting opinions, a cue for the Supreme Court to step in to settle an issue. By the time the high court does, the question has often been debated and informed by the legal views of dozens of U.S. judges. A national injunction squelches this legal debate; it immediately imposes the view of one judge on the entire country. It is, in fact, an astonishing power grab, which is why such orders are usually shunned.
National injunctions also encourage what’s known as “forum shopping.” Instead of going through the usual system, litigants go straight to a judge or circuit where they figure they have the best shot of getting an immediate national order. It’s no accident that so many of the lawsuits against the Trump travel ban were filed on the West Coast. It’s part of the Ninth Circuit, which has proven itself notoriously willing over the years to push the boundaries of acceptable legal practice.
Nicholas Bagley, a law professor at the University of Michigan, also points out the sheer harm of stopping a national government program or policy in its tracks: “What I struggle with is why anyone would support handing to judges the authority to put a halt to important government programs just because they happen to get their knickers in a twist about a particular case,” he told The Hill newspaper in 2019. Bagley was underlining just how out of keeping these injunctions are with the traditional court view that the office of the presidency is afforded great deference at least at the outset of a policy or executive order.
Obama sparked more than a few national injunctions, but the court use of these corrosive orders has absolutely skyrocketed under Trump. Litigants pile into district courthouses shouting “executive power abuse,” and judges are only too willing to believe the hype and move instantly to shut down facially valid executive orders and policies. As of May 2018, the Trump administration had been the subject of no fewer than thirty-five national injunctions—more than any other administration combined going back to the 1960s. Changes to Obama’s Dreamer program? National injunction. Ban on transgender service members? National injunction. Restrictions on asylum applications? National injunction.
Resistance judges in the Ninth Circuit have been so free-wheeling with nationwide injunctions against Trump policies that its appeals court stepped in to warn them against the abuse. “District judges must require a showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose litigation in other districts, from Alaska to Puerto Rico to Maine to Guam,” wrote Judge J. Clifford Wallace in December 2018. Wallace was speaking on behalf of a three-judge panel on the Ninth Circuit that was reviewing a nationwide ban against Trump rules governing contraceptive coverage under Obamacare.
Justice Clarence Thomas was so appalled by the growing use of these orders that he filed a concurring opinion to the Supreme Court’s travel ban decision. He blasted their use and sent a warning to judges. He’s worth quoting at length, to provide a sense of just how off the rails the Resistance judges have gone:
Injunctions that prohibit the Executive Branch from applying a law or policy against anyone…have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.
I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.
* * *
One of the more astute observers of the judicial Resistance has been Josh Blackman, a professor of law at the South Texas College of Law and a scholar for Cato. Blackman has written prolifically on presidential legal questions. And he is an interesting case, in that he isn’t a fan of a lot of Trump policy, but he does care deeply about the rule of law. As he wrote at one point: “In many respects, my work on [the travel ban] cases is a mirror image to my previous work on the constitutionality [of] President Obama’s [immigration] policies [which granted some undocumented immigrants temporary status]. While I supported [those] as a matter of policy, I concluded they were unlawful. In contrast, while I oppose the travel bans as a matter of policy, I concluded they were lawful.”
Blackman was one of the first people to call out the “legal resistance,” and he’s been particularly scathing about the tactics and the damage it has done to the judiciary. In a National Review article in October 2017, he addressed the travel ban maneuvers, pointing out the degree to which the Resistance had turned its strategy into a new legal art form:
This judicial blitz was a dry run of the legal resistance’s game plan. It would be repeated again and again with respect to the second iteration of the travel ban, sanctuary-city policies, and efforts to unwind the Obama administration’s regulatory agenda. First, President Trump takes an executive action. Second, litigants file suit in multiple friendly forums. Third, the court disregards prudential barriers that restrict suits against the executive—a role exactly opposite to the one that the judiciary usually plays. Fourth, looking beyond the four corners of the policy, the court throws out the policy by psychoanalyzing the commander-in-chief based on his tweets, cable-news interviews, and even campaign statements. Finally, without affording the president the traditional deference his office is due, the court issues a nationwide injunction, stretching far beyond the judges’ jurisdiction.
This “game plan” has been repeated ad nauseum. In June 2012, Obama issued a presidential memorandum on what is technically called the Deferred Action for Childhood Arrivals. Colloquially, we call it the Dreamers program. It made illegal immigrants who had been brought to the Unite States as children eligible to avoid deportation and acquire work permits.
I personally am an enormous fan of awarding legal status for Dreamers; they are here through no consequence of their own, have largely grown up in this country, and are for the most part productive contributors to our society. That being said, Obama’s order was undeniably unlawful. Prior to issuing the order, he had repeatedly sa
id he lacked the authority to do so—then did it anyway. He ordered the immigration services to ignore the law. He claimed this was just “prosecutorial discretion,” but such power is usually a judgment call over individual cases—not applied to a sweeping class of hundreds of thousands of individuals. And several courts found the policy unconstitutional.
The Trump administration on September 5, 2017, announced it would repeal Obama’s order—and what followed was the “game plan” to a tee. A flood of lawsuits hit the system within a week of the announcement—most of them in “friendly” jurisdictions. Trump had issued an executive order, just as Obama had issued an executive order. The Resisters claimed Trump’s order was arbitrary and capricious—completely ignoring the administration’s compelling arguments that DACA was unconstitutional. The courts owed as much deference to Trump as they did to his predecessor. Instead, they rushed to shut the new president down. In January 2018, San Francisco District Court Judge William Alsup issued a nationwide halt to Trump’s policy and ordered the federal government to continue accepting renewal applications for the program. In his order, Alsup cited presidential comments and tweets to claim that Trump had an animus against Dreamers, and that he had taken this step only in order to have a “bargaining chip to demand funding for a border wall.” Blackman noted in a subsequent piece about the ruling that “these talking points could have been plagiarized from the MSNBC chyron.”
Resistance (At All Costs) Page 17
