The judicial branch is officially resisting the Trump administration.
Since Friday, when a federal judge put Trump’s executive order banning visa holders from seven majority-Muslim countries and nearly all refugees from entering the US, the president has issued a steady stream of invective at the judiciary — claiming the judge undermined national security and blaming him for hypothetical future terrorist attacks. He’s taunted the Ninth Circuit Court of Appeals for taking more than a day to issue a ruling he claimed was an “easy D.”
And his Justice Department, during oral argument at the Ninth Circuit, essentially argued that — due to the extensive power the executive branch gets over immigration — the courts didn’t have the power to review or strike down the executive order at all.
In a unanimous ruling Thursday, a three-judge Ninth Circuit panel upheld the lower-court order — keeping the ban on hold for at least another couple of weeks.
Furthermore, the panel rejected the DOJ’s argument — forcefully.
So forcefully, in fact, that it’s hard not to wonder if the judges weren’t, at least a little, trying to push back against the president’s attitude as well:
[T]he Government has taken the position that 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. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush,553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.
The government’s argument wasn’t as unprecedented as this passage makes it sound — it was an extension of the “plenary power” doctrine that gives the courts very little review over immigration decisions. That’s why the forcefulness of the ruling is surprising. In an otherwise relatively cautious and technical ruling, the three judges on the Ninth Circuit panel reserved their strongest language for defending the role of the courts against what they saw as executive overreach.
Trump’s tweets have raised serious concerns about his attitude toward the independence of the judiciary; his own Supreme Court nominee has issued (mild) criticism of the president’s attacks. But the thing about undermining the independent judiciary is that you can only do it by intimidating the judges. And the judges who wrote the Ninth Circuit order have made it abundantly clear that, even in the name of national security, they will not cede their power as a co-equal branch.
President Trump was, unsurprisingly, unhappy. And his response was, in one sense, an attempt to double down on the argument that hadn’t persuaded the Ninth Circuit panel. But his response — “SEE YOU IN COURT!” — made it clear he’s had to accept that this is a question for the judicial branch now.