A sign of hope from the courts

The Washington Post Sunday - - SUNDAY OPINION - RUTH MAR­CUS ruthmar­cus@wash­post.com

The min­utes seem like hours in the Trump ad­min­is­tra­tion. Ev­ery day brings a fresh del­uge of alarm­ing de­vel­op­ments. Has it only been three weeks? Can the coun­try sur­vive four years of this?

The most hope­ful sign so far ar­rived Thurs­day, with the Latin phrase per cu­riam: Not only did the fed­eral ap­peals court re­ject the Trump ad­min­is­tra­tion’s high­handed ar­gu­ment that its im­mi­gra­tion or­der was not sub­ject to ju­di­cial re­view, it did so unan­i­mously.

A judge ap­pointed by Pres­i­dent Ge­orge W. Bush joined two judges ap­pointed by Demo­cratic pres­i­dents (Barack Obama and Jimmy Carter) to up­hold a de­ci­sion by a dis­trict court judge named by Bush. The ap­peals court spoke as one. Not as par­ti­sans or ide­o­logues but as judges, calmly and con­vinc­ingly ap­ply­ing the law in State of Wash­ing­ton v. Don­ald J. Trump.

Of course, the court ac­knowl­edged, judges “owe sub­stan­tial def­er­ence to the im­mi­gra­tion and na­tional se­cu­rity pol­icy de­ter­mi­na­tions of the po­lit­i­cal branches.” But the Trump ad­min­is­tra­tion, the court said, was making a far more au­da­cious ar­gu­ment — not that the court should re­frain from sub­sti­tut­ing its judg­ment for the pres­i­dent’s, but that it had no busi­ness re­view­ing his ac­tion in the first place.

The court, ac­cu­rately, char­ac­ter­ized the ad­min­is­tra­tion’s po­si­tion: “The Pres­i­dent’s de­ci­sions about im­mi­gra­tion pol­icy, par­tic­u­larly when mo­ti­vated by na­tional se­cu­rity con­cerns, are un­re­view­able, even if those ac­tions po­ten­tially con­tra­vene con­sti­tu­tional rights and pro­tec­tions.”

Not only that, as the court put it, the Trump ad­min­is­tra­tion “as­serts that it vi­o­lates sep­a­ra­tion of pow­ers for the ju­di­ciary to en­ter­tain a con­sti­tu­tional chal­lenge to ex­ec­u­tive ac­tions such as this one.” In other words, even to con­sider the state’s ar­gu­ment against the or­der would be an un­con­sti­tu­tional in­cur­sion on pres­i­den­tial author­ity.

The judges were hav­ing none of it. The ad­min­is­tra­tion’s ar­gu­ment, the court said, “runs con­trary to the fun­da­men­tal struc­ture of our con­sti­tu­tional democ­racy.”

Trump was pre­dictably dis­mis­sive and dis­re­spect­ful, typ­i­cal for a man who re­ferred to a “so-called judge” and who de­scribed the sober, prob­ing oral ar­gu­ment as “dis­grace­ful.” A “po­lit­i­cal de­ci­sion,” he sniffed to re­porters. This is Trump-speak for any rul­ing he dis­agrees with, in line with his re­cent Or­wellian tweet, “Any neg­a­tive polls are fake news.”

Rage he might, be­cause the im­pli­ca­tions of the court’s ac­tion res­onate far be­yond the im­mi­gra­tion or­der it­self. Other courts will hear other cases in­volv­ing Trump ac­tions yet to come; a Supreme Court even­tu­ally stocked with a Trump-ap­pointed jus­tice could have the fi­nal word.

Yet the 9th Cir­cuit rul­ing, suf­fused with bristling at the no­tion that courts should re­main supine in the face of claims of un­bri­dled ex­ec­u­tive power, of­fers an illustration of ju­di­cial will­ing­ness to pro­vide a needed brake on Trumpian over­reach — and, per­haps, a fore­shad­ow­ing of sim­i­lar ac­tions to come.

Con­sider that at oral ar­gu­ment, the Bush-ap­pointed judge, Richard R. Clifton, seemed most in­clined to side with the gov­ern­ment. It is not fan­ci­ful to imag­ine that the sweep­ing na­ture of the gov­ern­ment’s claims and Trump’s out-of-court at­tacks on the ju­di­ciary had the boomerang ef­fect of lead­ing Clifton to align with the two Demo­cratic ap­pointees.

Judges may not cite pres­i­den­tial tweets and re­marks, but it is naive to think that they es­cape ju­di­cial no­tice. “I don’t want to call a court bi­ased, but courts seem to be so po­lit­i­cal,” Trump com­plained the day af­ter the oral ar­gu­ment. A two-Democrats-to-oneRepub­li­can rul­ing would have but­tressed that view. Did wor­ry­ing about such im­pli­ca­tions tip Clifton to rule against the pres­i­dent?

There is a sub­tle New­to­nian logic in the real-world op­er­a­tion of the sep­a­ra­tion of pow­ers. Ev­ery over­re­ac­tion pro­vokes a re­ac­tion, even if not equal and op­po­site. When the ex­ec­u­tive goes too far, es­pe­cially when Congress seems com­pli­ant, the courts tend to be more will­ing to step in. When a pres­i­dent dis­par­ages the ju­di­ciary, when he speaks and op­er­ates in a way that seems heed­less of con­sti­tu­tional norms, judges are more on guard, and less in­clined to be re­flex­ively def­er­en­tial.

So it has been a long three weeks; many dan­gers loom. The rea­sons to worry are am­ple, from the pres­i­dent’s lat­i­tude in con­duct­ing for­eign pol­icy and mil­i­tary op­er­a­tions to the ac­qui­es­cent Repub­li­can con­gres­sional ma­jor­ity. Still, the framers crafted a re­silient sys­tem of checks and bal­ances that can pro­tect us from some, although by no means all, of Trump’s ex­cesses.

On that score, the ap­peals court’s ac­tion is not merely a teach­able mo­ment for the coun­try — it is a re­as­sur­ing one, at a time when that is sorely needed.


Demon­stra­tors protest the Trump ad­min­is­tra­tion’s ex­ec­u­tive or­der out­side of the U.S. Court of Ap­peals for the 9th Cir­cuit in San Fran­cisco on Feb. 7.

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