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Over the past weekend, Trump administration officials offered harsh criticisms of the judicial interference with the enforcement of the president’s immigration order. The Jan. 27 order suspended the immigration privileges of all refugees from Syria indefinitely and all immigrants from seven designated countries for 90 days.

After a federal district judge in Seattle enjoined the federal government from enforcing the executive order and the 9th U.S. Circuit Court of Appeals upheld that injunction, President Donald Trump’s folks pounced.

They argued that we have an imperial judiciary that thinks it has the final say on public policy — one that will freely second-guess the president in areas that are exclusively his under the Constitution.

Here is the back story.

The Constitution provides for essentially a shared responsibility in the creation of laws. Congress passes bills, and the president signs them into law. Sometimes bills become laws over the president’s veto. Bills are often proposed by presidents and disposed of by Congress.

When challenges to the meaning or application of the laws are properly made, the judiciary decides what the laws mean and whether they are consistent with the Constitution. My point is that there are substantial roles for the legislative and executive branches in the process of lawmaking and that there is an exclusive role for the judiciary in interpreting the meaning of the law.

When it comes to articulating and carrying out the foreign policy of the nation, the president is superior to the other branches. Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are. Congress has given him many tools with which to make and carry out those determinations.

Among those tools is substantial discretion with respect to immigration. That discretion permits the president, on his own, to suspend the immigration privileges of any person or group he believes poses a danger to national security.

Though the effect of his suspension may, from time to time, fall more heavily on one religious group, the purpose of that suspension may not be to target a religious group.

Can an immigrant who has been banned from entering the United States challenge the ban?

In a word, yes. Once an immigrant has arrived here, that person has due process rights (the right to know the law, to have a hearing before a fair and neutral authority and to appeal to a superior neutral and fair authority). This is so because the Constitution protects all persons.

The challenge to the president’s exercise of his discretion cannot be based on a political disagreement with him or an objection to the inconveniences caused by the enforcement; it can only be based on an alleged constitutional violation. In the Seattle case, the states of Washington and Minnesota had sued the president and alleged that he had issued his Jan. 27 order to target Muslims, many of whom study or work at state universities.

Can the courts hear such a case?

In a word, yes; but they must do so with intellectual honesty and political indifference. The judiciary is an independent branch of the government, and it is coequal to the president and the Congress. It is answerable to its own sense of scrupulous intellectual honesty about the Constitution. It is not answerable to the people. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference — that judges’ decisions shall not be made in order to produce their own politically desired outcomes.

It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes. When the courts do this with intellectual honesty and indifference to the political outcome, they are doing their job, and we should accept the outcome.

Must the president justify to the satisfaction of judges his exercise of discretion in suspending immigration privileges?

In a word, sometimes; he only needs to do so when a fundamental liberty, such as the free exercise of religion, is at stake — and not when state universities might temporarily lose students or faculty or the enrichment that those from foreign lands often bring.

This can be a dangerous sea for judges to navigate because judicially compelling the president to justify his development of the nation’s foreign policy might expose that development to unwanted eyes and ears who could cause the nation ill in perilous times.

Suppose intelligence officials told the president they believe that Islamic State-inspired lone wolves are about to enter the United States from three of the seven countries but some of them have multiple passports and may leave from one of the other four countries. That would clearly justify the president’s executive order, but it would be foolhardy for him to explain in a court how he came to know that and detrimental to then have to await a court’s approval while the evildoers arrive here.

In our democracy, the president and members of Congress make promises and then convince us that they have kept them so we will re-elect them. The whole purpose of an independent judiciary is to be anti-democratic — to protect the life, liberty and property of all people from the unconstitutional behavior of the two political branches of the government. When the judiciary does this, it is not being imperial; it is doing what the Constitution requires. If this were not the case, then nothing would prevent the political branches from trampling the rights of an unpopular minority.

ORDER IT NOW

The late Justice Robert Jackson once famously quipped that the Supreme Court is infallible because it is final; it is not final because it is infallible. But that infallibility — if you will — must be tempered by fidelity to the rule of law, which demands the intellectual honesty and political indifference that the Constitution requires for the personal freedoms of all of us to survive.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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  1. Muh Constitution!

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  2. David says:

    Mr Napolitano doesn’t believe the government has the right to restrict travel to the US.

    if my neighbor wants a friend of a friend from Mexico City to come here to work in his shop, we have the natural right to ask, they have the natural right to come here, and the government has no moral right to interfere with any of these freely made decisions

    https://www.creators.com/read/judge-napolitano/01/13/immigration-and-freedom-6a370

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    • Replies: @jtgw
    There does seem to be an inconsistency. If there is a right to invite foreigners onto your property, then the government has to prove, in court, that such an invitation would endanger national security, but according to the judge's article here, the government should have the freedom to exclude foreigners as it sees fit, without having to prove anything in court. Not sure if the judge is changing his views or just isn't thinking through the issue.
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  3. Any literate person can read the constitution and know what it says. But only nine people on earth (appointed for life) know what it means. Can you see any opportunity for mischief in this arrangement Judge? Do you agree with me that the Supreme Court should be replaced by a jury?

    Do you believe the myth of the “living document”. Or do you agree with me that the constitution died at Appomattox since the constitution sans federalism is already not the constitution? If the document remains among the living it has developed many vestigial organs such as the tenth amendment and the bill of rights. And it has somehow elevated the presidency from chief executive officer of the federal government to Emperor of the Planet Earth. Somewhere in the living document I suppose are enumerated the powers of the CIA?

    Judges are political. That’s why the red and blue teams want to get elected and nominate “their own” judges. Maybe judges should be a-political but they are not. Justices on the high court are thought to “interpret” a constitution which is in fact a dead letter. The practical reality is these political appointees ARE the constitution.

    Please. Lets drop the pretense that we are a nation of laws and begin talking about how we might become one.

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  4. woodNfish says:

    The late Justice Robert Jackson once famously quipped that the Supreme Court is infallible because it is final; it is not final because it is infallible. But that infallibility — if you will — must be tempered by fidelity to the rule of law, which demands the intellectual honesty and political indifference that the Constitution requires for the personal freedoms of all of us to survive.

    The SC has been a constitutional disaster for many years, from the incorrect ruling that the states are not sovereign and have no right of secession to finding new unwritten rights in the constitution that only succeed in forcing civil society to fund decadence and destroy our communities.

    The Seattle judge and the entire 9th Circuit Court decision was purely political and nothing else.

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  5. Wally says:

    If illegals make such ‘valuable contributions’, then why do their countries refuse to take them back?

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    Source?
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  6. KenH says:

    …..but they must do so with intellectual honesty and political indifference.

    It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes.

    The federal judiciary didn’t get this memo, judge. The problem is that the judiciary has become very activist and a power onto themselves and have proven they aren’t above outright usurpation. Many of its rulings have fundamentally changed the Constitution since it now means whatever some ultra left wing activist judge says it does as opposed to the framers original intent and the plain language doctrine.

    There are many examples of this but a good one is the 1982 Plyler v. Doe case whereby the Supreme Kanagroo Court opined that an illegal alien is a person under the 14th amendment equal protection clause and therefore entitled to some state benefits which in this case meant attending public schools. But there isn’t a scintilla of evidence that the framers of the 14th amendment meant to extend it to citizen and illegal alien alike, yet the judges took it upon themselves to conclude just that. Classic judicial activism. This ruling is just lunacy and defies common sense and virtually renders citizenship meaningless.

    The present system of activist, drunk on power federal judges thinking they have the power and a mandate to overthrow the existing order if it offends their political sensibilities must come to an abrupt end.

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    • Agree: Jim Christian
    • Replies: @Jim Christian
    Wunnerful takes, KH. I'm just a layman, however. But then, there are the various circuits. From where I sit, if a Liberal from Florida carried into the 9th Circuit a question of whether to lasso the moon and pull it into Earth and a conservative argued against, the 9th Circuit would of course go the route of the Liberal Lunar Roundup. Were the Immigration order carried off to a Conservative Circuit, the Ex-Order would have stood. Problem is, there is no check or balance on the 9th Circuit and who can go there. And, why have 12-Judge panels when their every decision is 3-judge? Where were the rest of them, playing golf? There should be some sort of rocket-docket appeal process to a 12 Judge panel, they talked of that, but the delays were too onerous. I'd like to get everyone on that court the record before the next bullshit stunt is pulled by Tommy-Terror. Instead, Trump is going to write ANOTHER order which will also be carried into the 9th Circuit and also stayed, probably by the same three-judge panel. Every decision the guy makes can just be rinsed through the 9th Circuit, no?.

    Not every issue originates in 9th Circuit territory after all, either. Liberals from Mn should have had to carry their issue with Trump's order to their home Circuit Court or Federal Court in DC, not be allowed to go traipsing out to the 9th Circuit to join Washington State for an easy "win". Liberals with issues from all over the country have been landing in the 9th Circuit for 40 years now because that's the court of liberal decision. Where and how does that end?
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  7. Anon says: • Disclaimer
    @Wally
    If illegals make such 'valuable contributions', then why do their countries refuse to take them back?

    Source?

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  8. @KenH

    .....but they must do so with intellectual honesty and political indifference.

    It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes.
     

    The federal judiciary didn't get this memo, judge. The problem is that the judiciary has become very activist and a power onto themselves and have proven they aren't above outright usurpation. Many of its rulings have fundamentally changed the Constitution since it now means whatever some ultra left wing activist judge says it does as opposed to the framers original intent and the plain language doctrine.

    There are many examples of this but a good one is the 1982 Plyler v. Doe case whereby the Supreme Kanagroo Court opined that an illegal alien is a person under the 14th amendment equal protection clause and therefore entitled to some state benefits which in this case meant attending public schools. But there isn't a scintilla of evidence that the framers of the 14th amendment meant to extend it to citizen and illegal alien alike, yet the judges took it upon themselves to conclude just that. Classic judicial activism. This ruling is just lunacy and defies common sense and virtually renders citizenship meaningless.

    The present system of activist, drunk on power federal judges thinking they have the power and a mandate to overthrow the existing order if it offends their political sensibilities must come to an abrupt end.

    Wunnerful takes, KH. I’m just a layman, however. But then, there are the various circuits. From where I sit, if a Liberal from Florida carried into the 9th Circuit a question of whether to lasso the moon and pull it into Earth and a conservative argued against, the 9th Circuit would of course go the route of the Liberal Lunar Roundup. Were the Immigration order carried off to a Conservative Circuit, the Ex-Order would have stood. Problem is, there is no check or balance on the 9th Circuit and who can go there. And, why have 12-Judge panels when their every decision is 3-judge? Where were the rest of them, playing golf? There should be some sort of rocket-docket appeal process to a 12 Judge panel, they talked of that, but the delays were too onerous. I’d like to get everyone on that court the record before the next bullshit stunt is pulled by Tommy-Terror. Instead, Trump is going to write ANOTHER order which will also be carried into the 9th Circuit and also stayed, probably by the same three-judge panel. Every decision the guy makes can just be rinsed through the 9th Circuit, no?.

    Not every issue originates in 9th Circuit territory after all, either. Liberals from Mn should have had to carry their issue with Trump’s order to their home Circuit Court or Federal Court in DC, not be allowed to go traipsing out to the 9th Circuit to join Washington State for an easy “win”. Liberals with issues from all over the country have been landing in the 9th Circuit for 40 years now because that’s the court of liberal decision. Where and how does that end?

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  9. a says:

    “the purpose of that suspension may not be to target a religious group.” . Where anywhere in the constitution is it declared that the ability of (non-citizens) to immigrate to the US cannot depend on religion?? Indeed it currently does in the case of jews and some fundamental protestant Christian groups in Russia.

    “The whole purpose of an independent judiciary is to be anti-democratic — to protect the life, liberty and property of all people from the unconstitutional behavior of the two political branches of the government.”

    Constitutional behavior of the two political branches of the government may indeed be detrimental to the life, liberty and property of certain classes of people. At the beginning the author states the job of the courts is to determine whether a law is constitutional, but here its job is to “protect the life, liberty and property ” according to some unspecified ideology which it will do by declaring laws it is opposed to to be unconstitutional.

    Courts are involved in making laws (i.e., setting the boundaries for what can and cannot be done in society) as much as legislatures are.

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  10. MarkinLA says:

    Though the effect of his suspension may, from time to time, fall more heavily on one religious group, the purpose of that suspension may not be to target a religious group.

    Yeah, this stupidity and the whole thinking around it needs a rethink. These people are not citizens and they are not a party to the Constitution and really do not have any rights under the Constitution. They do not have the same responsibilities as citizens. The Bill of Rights only applies to them if we let it. There is nothing in the Constitution that gives that right to anybody else. The fact we give them the same rights under the criminal justice system is also because we allow it. Yes some court in the past agreed with this but there is nothing in the Constitution that demands it.

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  11. AnalogMan says:

    Typical self-serving lawyer weasel talk.

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  12. jtgw says:
    @David
    Mr Napolitano doesn't believe the government has the right to restrict travel to the US.

    if my neighbor wants a friend of a friend from Mexico City to come here to work in his shop, we have the natural right to ask, they have the natural right to come here, and the government has no moral right to interfere with any of these freely made decisions
     
    https://www.creators.com/read/judge-napolitano/01/13/immigration-and-freedom-6a370

    There does seem to be an inconsistency. If there is a right to invite foreigners onto your property, then the government has to prove, in court, that such an invitation would endanger national security, but according to the judge’s article here, the government should have the freedom to exclude foreigners as it sees fit, without having to prove anything in court. Not sure if the judge is changing his views or just isn’t thinking through the issue.

    Read More
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  13. The dominant political Narrative undergoes periodic change. This is obvious, despite everyone always thinking in Orwellian terms: “Oceana had always been allied with East Asia in war against Eurasia…”

    Permanence is an illusion.

    So if we assume that Trump’s election is a signal that the dominant Political Narrative is shifting (and I think this is so), then the behavior of Federal Courts predictably will hew to the Old Narrative until either public pressure forces change in judicial opinions, the judges are retired or if their willingness to defend the Old Narrative is large enough, they set off either a constitutional crisis or a wave of assassinations wipes them out (Level 3 of revolutions, one step short of Level 4′s full scale warfare.)

    We live in interesting times. Given the depth of religious fervor for the Old Narrative (it was, after all, a product of a Theocracy….the Church of Progressive, Homogeneous Diversity), it remains entirely possible that the zealousness of the defenders of the Old Narrative will provoke a full-scale civil war.

    Armies cannot resist an idea whose time has come, but they most certainly can spark bloody warfare while futilely resisting the transition.

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  14. When elites insist on factually untrue beliefs, hoping for intellectual honesty seems rather fanciful. The catechism of the Western Theocracy is saturated with magical thinking.

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