Ethics Alarms had a revealing comment on the post about the grandstanding and unethical ex-acting-Attorney General’s breach of her duty to represent her client regarding the President’s Middle East immigration Executive Order. Following Judge Robart’s temporary restraining order (or TRO), the reader said, in essence, ‘See? She was right! The order was illegal, just like she said it was!’ The comment was idiotic on its face on many levels, yet it was also a fair summation of how partisan citizens have viewed the controversy. The various TROs validate the criticism of the Executive Order in their minds. They don’t, however. Judge Robart’s order particularly doesn’t. In fact, it is infuriatingly vague.
Now, a TRO doesn’t necessarily have to explain in detail what is wrong with a law, regulation or order. The purpose of this judicial act is to stall a measure that has the potential of causing a lot of disruption, unhappiness or expense from going into effect until there can be a decisive determination that it is legal, constitutional and within the power of the government entity that issued it. A judge issuing a TRO must conclude that the objection to the act is substantive, that the party applying for the TRO has a substantial chance of prevailing on the merits, and that the party has standing to object. The judge does not have to conclude that the party asking for the order is right, just that the party may be right.
However, reading Judge Judge Robart’s order, one can glean no clue as to why the TRO was justifiable, and why it is so sweeping. Although the judge writes in his conclusion that…
The work of the court is not to create policy or judge the Wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. …
[T]he court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.
…the order never states what is illegal or unconstitutional in his view. This omission has led many analysts to conclude that there isn’t anything. He just doesn’t like the order. Much has been made of the fact that Robart was a Bush appointee, so the order isn’t “partisan.” Of course, the same people making this argument, in other settings, would maintain that a Bush appointment is just a bad judge. Many, many, many Republicans and conservatives detest the President, and especially, one should remember, the Bush family. It is far from unlikely that bias against the President caused Judge Robart to employ poor judgment. Democrats cite the fact that Rorart is a conservative as part of a wonderfully convenient construct: if a conservative judge opposes them, the fact that he’s a conservative means he’s wrong, and if a conservative judge agrees with them, the fact that he’s a conservative means he’s right.
Some of the exchanges in the hearing that led to his order directly contradict his written statement that he is not questioning the wisdom of the order rather than challenging its legality.
Robart asked Justice Department attorney Michelle Bennett how the order was rationally related to its stated goals, noting that no citizens from the seven Muslim-majority countries affected by it had been arrested on domestic terrorism charges since the Twin Towers fell. That is a policy argument, not a legal one. The President and the government can determine that there is a risk to the nation posed by a particular region or group before a domestic tragedy occurs. The judge was arguing that no horses had escaped, so it’s unreasonable to lock the barn door. That’s his opinion, and perhaps a defensible one, but it’s not his call to make. (I would say that it is also a naive and foolish opinion.)
Slate assigned the task of writing its post titled “Why Judge Robart Blocked the Muslim Ban” to Mark Joseph Stern, who covers LBGT issues and legal stories for the online magazine. He’s a 2016 Georgetown University Law Center grad, so it’s uncertain whether he’s an actual lawyer yet, but his analysis of this issue is not promising for his future legal endeavors. First, he has what I flag as a serious conflict of interest: the day after the election, Stern offered an essay titled, “I Am a Gay Jew in Trump’s America. And I Am Afraid for My Life.” No hysteria and bias there, right, Slate? Then, Stern notes that “Robart’s order did not elaborate extensively on the ban’s constitutional infirmities.” That’s an understatement, for Robart’s order details nothing about the alleged “infirmaries” whatsoever.
Stern argues,
“But in ruling for Washington—and in blocking the entirety of the ban—he appeared to agree with the state’s claim that Trump’s executive order cannot be carried out in a constitutional manner. That’s critically important. Most other judges to consider the ban so far have found that it violates the due-process rights of immigrants already in the United States and those who were on their way into the country when the order was signed. Robart went far beyond that rather narrow question of law, finding that the entire order is likely unconstitutional, presumably because it is irrational and motivated by unlawful anti-Muslim animus.”
…Even if the administration were to somehow execute the ban in a way that respects its targets’ due-process rights, it would still run afoul of basic equal protection and First Amendment principles. Simply put, there is no constitutional way to implement an unconstitutional order. “
The only possible response to this nonsense is “Huh? Stern says that Robart doesn’t explain why the law is unconstitutional, but it is “presumably” unconstitutional because “it is irrational and motivated by unlawful anti-Muslim animus.”
I really am going to have to shred my Georgetown law degree. A judge doesn’t get to say what laws are “rational” is his view, and there’s no rationality clause in the Constitution. Not is there a “dubious motives” clause. Furthermore, foreign citizens have no Constitutional rights to protect. Once the Executive Order’s effects on citizens, residents and individuals who have been previously approved to travel to the U.S. have been addressed, the Constitution doesn’t apply. Even the ACLU accepts that.
And did you notice Stern’s cyclical argument? The Executive Order is unconstitutional because there is no constitutional way to implement an unconstitutional order, and there is no constitutional way to implement it because the order is unconstitutional. I had several law professors that would give the Kingsfield treatment to any student who was foolish enough to offer such doubletalk in class
Look, there may be a legitimate constitutional case against the part of the order halting immigration from the seven failed states and Iran, but it is fascinating that no serious analyst has put his or her reputation on the line by articulating it. The fact that anyone is resorting to using Stern’s biased and emotional analysis as authority is telling. Josh Blackman, a professor at South Texas College of Law in Houston, is quoted in the New York Times as saying,
“Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.”
Yet despite no substantive reason for the order, it was upheld by the Ninth Circuit yesterday, pending a full hearing to come. Why would a Federal Court of Appeals not require that a temporary restraining order justify its reasoning better than Robart’s vague “Executive Order bad” evasion in order to be upheld?
Byron York in the Washington Examiner summarizes the Justice Department brief rebutting Robart, to the extent that he provided anything to rebut. York concludes,
“Indeed, for all except the most partisan, it is likely impossible to read the Washington State lawsuit, plus Robart’s brief comments and writing on the matter, plus the Justice Department’s response, and not come away with the conclusion that the Trump order is on sound legal and constitutional ground.”
That’s fair. Judge Robart’s opinion is not, nor is it competent or responsible. It certainly tells us nothing about the legality of the Executive Order, one way or the other.
***
As a footnote, I was intrigued that Ann Althouse offered an unexpected defense of the President’s “so called judge” tweet, hinting that Robart’s opinion showed a lack of so-called judgment. She blogged,
“As some commenters are pointing out, the phrase “so-called judge” could be called an attack on the man. But the only basis for saying “so-called judge” is what the man in the robe is doing in this particular case. There’s nothing against him as an individual. It’s very close to saying, in a substantive legal way, that this is a man who is acting beyond his proper judicial power. This parallels what the judge is saying: Trump is doing things under the appearance of being President, but what he is doing is beyond the powers of the President. This is just a man, not someone who can wield governmental power. That’s not a personal attack. That’s the rule of law.”
Count Althouse among the rapidly growing number of citizens who did not support Trump but who have found themselves driven to defend the President against the relentless attacks from the Left and the news media.
Ethics Alarms 
The fact is it is likely to stand, though. The 9th circuit is uber-liberal and the SCOTUS is split.
I doubt it. This is pure law with precedent, and should be a slam dunk. All of the four liberals are not hopeless ideologues. I’d bet on Kagan, at least, to strike down the TRO.
I dunno, who’s to say Kennedy might not break with the conservative wing? You know Sotomayor and Breyer and the notorious RBG will take any chance to stick a thumb in Trump’s eye.
I agree. I think they might strike it down 8-0. The guy in Washington state is way out of line.
Excellent discussion of the DOJ’s brief (and applicable law) in response to the TRO here:
http://www.washingtonexaminer.com/article/2613988
Gee, that link looks familiar…
Ooops. Sorry, teach. It’s a great article, and a great brief. I read it before you posted.
Jack,
“Count Althouse among the rapidly growing number of citizens who did not support Trump but who have found themselves driven to defend the President against the relentless attacks from the Left and the news media.”
Yeah, I hate when people call people I care about mean names. So I always immediately rush to write a strongly-worded defenses of my positions and character. Then, I post it online, where it does absolutely nothing (just like most of this).
Arm-chair activism to the rescue!!!
-Neil
I think that’s a silly misstatement of what’s going on, Neil.
Trump’s foes are showing that they are untrustworthy, hypocritical, undemocratic and unfair. That information is not without value, and Ann, I and others have an obligation to publicize it.
In my perusal of Althouse’s blog over the past few weeks, I’ve found her to be nothing but pro-Trump. She’s even written a few embarrassingly glowing puff pieces praising Kellyanne Conway, of all people.
The last straw came when I saw a commenter repeatedly call for the internment and execution of American Muslims, to absolutely no response from either Ann or the rest of the commentariat. An ethical blogger wouldn’t allow that.
I was disappointed, as I thought Althouse had a reputation as being fairly rational, and you seem to think highly of her. But her blog is all pro-Trump all the time.
No, She’s anti-dishonest Trump bashing, as am I. I have seen NO pro-Trump posts. There’s a material difference. That’s why I’ve been impressed: she disdains Trump, but does not accept facile knee-jerk reactions to him, and was an early quoter of Scott Adams, who saw thing nobody else’s biases would allow.
It just “looks” pro-Trump because the Left tries to out do itself daily in irrational, desperate attacks on him…leading honest folk to stamp out those forest fires since the reaction of the Left is increasingly more dangerous to the nation than what the Left claims to be railing against.
Fighting the worst danger may look like defending the less worse danger…especially when one agrees with the worse danger.
Chris is suffering deeply from cognitive dissonance and irreconcilable bias.
When all she posts are defenses of Trump, with little to no criticism of him, I call that pro-Trump.
And her defense of this tweet is incoherent. Of course calling him a “so-called judge” is a personal attack on the man, not just criticism of his legal decision.
I was surprised by that argument, which is why I reported it. But Althouse isn’t political; she focuses on language and logical inductions and deductions. I have no idea what her political views are. She does have the professor’s fondness for being contrary.
Judge Robart’s order arises out of a lawsuit filed by Minnesota and the State of Washington. I wondered about the states’ standing to contest the Executive Order, which should be a component of an application for a temporary restraining order or injunction. What rights or justiciable interests do Minnesota and Washington have that are impaired by the Executive Order? Immigration and naturalization are federal questions, and most points of entry are governed by Homeland Security and not state or local jurisdictions. Is it the backlog and crowds, causing traffic problems and protests at government facilities that creates that legal interest?
As for Mark Joseph Stern’s analysis, I read his comments about “rational” in the legal sense that the Executive Order has to be “rationally related to a compelling government interest” (i.e., prevention of terrorism directed at specific individuals) to pass Constitutional scrutiny. I am not sure I agree with him, though.
Kudos to Professor Josh Blackman from South Texas College of Law-Houston (my law school). That may make up for South Texas College of Law’s desire to change its name to the “Houston College of Law”, which resulted in a juridical tongue lashing in favor of the University of Houston Law Center’s trademark and trade dress infringement lawsuit in federal court last year. I don’t know who in my law school’s administration thought changing the name and using crimson and white as their colors was a good idea, considering that U of H used similar fonts and colors in their school’s branding, and have done so for many, many decades.
jvb
If he meant the rational relationship test, then he should have said so. Not meeting the test is not the same thing as being “irrational.” I thought about giving him the benefit of the doubt, but he paired irrational with motivations, and I decided that his analysis was too dumb to tolerate.
And seriously, can someone rationally argue that controlling immigration from hotbeds if Islamic terrorism has no rational relationship to keeping terrorist out of the US?
Translation of the judge’s remarks: I can’t find a good reason why the executive order was illegal but I don’t like it so I’ll just write some stuff that sounds wise to make the TRO stick.
Give the Judge a dime for his thoughtful opinion.
That’s EXACTLY what it reads like. I’d call it embarrassing.
The judge was arguing that no horses had escaped, so it’s unreasonable to lock the barn door.
Well, since the order doesn’t bother to lock the doors of barns from which the horses have escaped, this strikes me as pretty fair.
The focus is on failed states that are particularly infested with ISIS. I keep hearing your argument, and it’s just intellectually incoherent. If the problem to be addressed is ISIS, these are the prime countries of concern, and the Obama administration agreed.So do you want the barn door unlocked? Or locked more? Your statement suggests both arguments at the same time.
No, the statement suggests a desire for consistency. The text of the EO brings up 9/11 and San Bernardino, neither of which would have been prevented by the ban on any of these countries. I’m of the opinion that if the government wants to restrict something, it should have a pretty solid justification for doing so. Do conservatives no longer share that belief?
More from Althouse on this:
“Judge Robart’s brisk ruling contained almost no reasoning. By contrast, Judge Nathaniel M. Gorton, of the Federal District Court in Boston…”
“… issued a 21-page decision on Friday refusing to block the program and discussing the legal arguments in detail. Judge Gorton also sketched out the broader picture. ‘The rich immigrant history of the United States has long been a source of strength and pride in this country,’ Judge Gorton wrote. ‘Conversely, the public interest in safety and security in this ever-more dangerous world is strong as well.’ The balance, he wrote, tipped in favor of Mr. Trump.”
Writes Adam Liptak in the NYT, creating the impression that Judge Robart’s decision simply represents a different tip in the balance between the value of immigration and the value of public safety. You know these judges, they’re all about balancing, and a decision could go in either direction, depending on how the weights feel in the hand holding the scales of justice.
But Judge Robart took action and Judge Gorton refrained from taking action. It is Judge Robart who needs to identify a legal basis for interfering with another branch of government. How is it that Gorton gave us a 21-page opinion explaining the doing of nothing and Judge Robart interfered with the actions of the executive branch without putting legal reasons in writing?
Simple – he could, and he’s obviously not a fan of Trump. Maybe he wants to still be invited to all the right cocktail parties.
To use an out of date term I was never very fond of, I think the judge is simply a bleeding heart liberal at heart. He used to do pro bono work for refugees and immigrants. Which doesn’t dispose of the issue, but given his decision and its lack of coherence, where there’s a lot of smoke there may be fire.
Pithy take down of the TRO here:
https://pjmedia.com/rogerkimball/2017/02/06/judge-robarts-black-humor/
“That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.”- The Chinese Exclusion Case, 130 U.S. 581, 603 (1889)
” in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotations omitted) See also Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982) (citing Fiallo)
A middle of the night observation on this lawsuit:
The Obama DOJ went after Arizona Governor Jan Brewer and Maricopa County Sheriff Joe Arpaio hammer and tong for their scurrilous attempt to enforce U.S. Immigration laws in their jurisdictions in the absence of the Federal Government’s perceived laxity in doing so, to the detriment of the State and County and their respective citizens. The DOJ crushed Brewer and Arpaio in Federal Court on the theory that only the Federal Government has the exclusive authority to determine and enforce immigration policy and law. The left sagely and enthusiastically nodded its approval.
Now the Great States of Washington and Minnesota, presumably acting through their respective chief executives, are in Federal Court attempting to block the Federal Government’s attempt to determine and enforce U.S. Immigration laws and have such determination and enforcement instead made by the States because their citizens are being harmed by the Federal Government’s immigration policies. The left is deliriously shouting its approval.
Go figure.
It all makes sense if you keep in mind that the federal government’s overall scheme concerning immigration is to ignore the federal government’s overall scheme concerning immigration. Once you understand that, it becomes clear that Arizona ‘ s attempt to enforce the scheme attempted to undermine the scheme, and that the current attempt to undermine the scheme is consistent with the scheme.
Hah. Of course. What was I thinking. Thanks LS. I’ll try to do better in the future.
I am listening live… wow… seems the judges are not on Trumps side. Is anyone else listening?