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.
“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.