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The President and the Courts
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Last week, in a public courtroom in the federal courthouse in Seattle, the states of Washington and Minnesota — after suing President Donald Trump, alleging injury caused by his executive order that suspended the immigration of all people from seven foreign countries — asked a federal judge to compel the president and all those who work for him to cease enforcing the order immediately. After a brief emergency oral argument, the judge signed a temporary restraining order, which barred the enforcement of the president’s order everywhere in the United States.

The president reacted with anger, referring to the judge as a “so-called judge,” and immigrant rights groups praised the judicial intervention as a victory for the oppressed. The president meant, I think, that Judge James L. Robart had not acted properly as a judge by second-guessing him — that he had acted more like a politician; and the immigrant rights groups felt, I think, that the United States was once again a beacon of hope for refugees.

Here is the back story.

A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries.

When the president exercises powers granted to him by the Constitution or federal statues or when Congress passes bills, one cannot simply sue the government in federal court because one does not like what has been done. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call “standing.” Standing means that the plaintiff has alleged and can most likely show that the defendant has caused the plaintiff an injury in fact, distinct from all others not in the case.

Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump’s order but rather the governments of two states, each claiming to sue in behalf of people and entities resident or about to be resident in them. The court should have dismissed the case as soon as it was filed because of long-standing Supreme Court policy that bars federal litigation alleging harm to another and permits it only for the actual injury or immediate likelihood of injury to the litigant.

Nevertheless, the Seattle federal judge heard oral argument on the two states’ emergency application for a temporary restraining order against the president. During that oral argument, the judge asked a lawyer for the Department of Justice how many arrests of foreign nationals from the seven countries singled out by the president for immigration suspension there have been in the United States since 9/11. When the DOJ lawyer said she did not know, the judge answered his own question by saying, “None.”

He was wrong.


There have been dozens of people arrested and convicted in the United States for terrorism-related crimes since 9/11 who were born in the seven countries. Yet even if the judge had been correct, his question was irrelevant — and hence the answer meaningless — because it does not matter to a court what evidence the president relied on in this type of order. This is the kind of judicial second-guessing — substituting the judicial mind for the presidential mind — that is impermissible in our system. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy and because Congress has assigned to the president the power of immigration suspension as a tool with which to implement foreign policy.

These rules and policies — the requirement of standing before suing and the primacy of the president in making foreign policy — stem directly from the Constitution. Were they not in place, then anyone could sue the government for anything and induce a federal judge to second-guess the president. That would convert the courts into a super-legislature — albeit an unelected, unaccountable, opaque one.

I am not suggesting for a moment that the courts have no place here. Rather, they have a vital place. It is to say what the Constitution means, say what the statutes mean and determine whether the government has exercised its powers constitutionally and legally. It is not the job of judges to decide whether the government has been smart or prudent, though.

One of the arguments made by the state of Washington to explain why it had standing was laughable. Washington argued that corporations located in Washington would suffer the irreparable loss of available high-tech-qualified foreign employees if the ban were upheld. Even if this were likely and even if it were provable, it would not establish injury in fact to the government of Washington. When pressed to reveal what entity Washington was trying to protect, it enumerated a few familiar names, among which was Microsoft.

Microsoft? The government of the state of Washington is suing to protect Microsoft?! Microsoft could buy the state of Washington if Starbucks were willing to sell it.

I jest to make a point. The rule of law needs to be upheld. Carefully paying attention to constitutional procedure protects personal freedom. In similar environments, the late Justice Antonin Scalia often remarked that much of what the government does is stupid but constitutional and that the courts’ only concern is with the latter.

The DOJ is now challenging the Seattle restraining order in the 9th U.S. Circuit Court of Appeals, and this case may make its way to the Supreme Court. Will federal judges be faithful to the rule of law? We shall soon find out.

Copyright 2017 Andrew P. Napolitano. Distributed by

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  1. john cronk says: • Website

    Thank you Andrew. Like a beam through the murk.

    • Replies: @pyrrhus
  2. MEexpert says:

    In similar environments, the late Justice Antonin Scalia often remarked that much of what the government does is stupid but constitutional and that the courts’ only concern is with the latter.

    Does the constitution allow spying on the US nationals by the government? My understanding is that it does not yet the Supreme Court allowed this spying to go on. All courts have deferred to the government in all matters where the government claimed national security, the constitution be damned. The constitutional lawyer and professor shredded the constitution and the supreme court did nothing to stop him.

  3. Sam 1234 says:

    The argument here is not valid. The concept of standing limits participation in suits to those affected. It is not a very valid legal concept, because the only benefit in limiting participation where those affected cannot defend themselves, is to lazy judges.

    There is not argument against the standing of the state involved here. Under the Constitution states retain all powers not specified as federal powers or reserved by the people. Why would that not include the rights of their citizens against federal acts?

  4. Like it or not this is : War, and it is not going to let up.
    They, the one world government communists have taken over the legal system, the education system, the medical field, the entertainment field, the commerce arena, the clergy, the media, and now even the military.
    They have wormed their way into every impacting element of society and the only way to handle this mortal situation is to finally regard them as the enemy, and then to react accordingly.

    Authenticjazzman “Mensa” society member of forty-plus years and pro jazz artist.

  5. @Sam 1234

    “There is not argument against the standing of the state involved here.”

    Wrong. The States have no competence in the determination of what aliens are permitted entry to the United States. Article 1 Section 8 lays naturalisation squarely within the purview of Congress, and they have empowered the President by statute to act within the bounds they have established by statutes. States may have a vested interest in collecting revenues from immigrant slave labour, but they have no right to insist on it or that their “citizens” (come to think of it, where are the libs who whine about Citizens United when Microsoft is the party seeking to benefit?) benefit from it. As for the immigrants who themselves are residents of the States by the grace of an Act of Congress, their admittance the the US is revocable after appropriate due process, but it is revocable nevertheless.

    “Under the Constitution states retain all powers not specified as federal powers or reserved by the people. Why would that not include the rights of their citizens against federal acts?”

    I find it rich, given that the vast majority of pro-immigrant types are out and out statists who favour the advance and proliferation of the central government in nearly every venue of life, resort to the ninth and tenth amendments to advance their agenda. Have they no shame?

    • Replies: @jtgw
  6. jtgw says:
    @The Alarmist

    The 9th Circuit’s reasoning for upholding the stay does seem to rely mostly on due process grounds.

    I agree with you about leftist hypocrisy on this issue: they are all for centralization of authority, except when the central authority is governed by their ideological enemies. But I think Judge Nap in earlier articles pointed out that the Constitution only gives Congress powers over naturalization, i.e. laws determining the conditions for becoming a US citizen, with the implication that powers over immigration more generally, e.g. rights of residence, employment etc, rest with the states. So a strict originalist should oppose any federal immigration statutes not directly connected with naturalization. Federalization of all immigration law, however, goes back at least to the 1870s and I think the Judge is appealing to that precedent in his current legal reasoning.

  7. @Sam 1234

    Until and unless someone is a u.s. citizen, he cannot be a “citizen” of any State.

    He is merely a legal resident of that State and, quite properly, he does not necessarily have the same constitutional and statutory protections as a citizen.

    If a State wants the right to determine its own immigration and border policies — including the right to treat a foreigner as a citizen — that State needs to secede from the USA or negotiate an amendment to the US Constitution. Each option has some merits, but the complaining States haven’t achieved either one yet.

    • Replies: @jtgw
  8. jtgw says:

    Actually, federal control of immigration is mostly a creature of the judicial review process. States originally had their own immigration laws and controlled their own borders; federal supremacy over naturalization or commerce between states was not construed as requiring complete open borders between the states. States could also confer their own citizenship on foreigners, though other states were not obliged to recognize that as equivalent to citizenship in their own jurisdiction.

    So in short you don’t need to amend the constitution; you just need to nullify the federal statutes that are already unconstitutional. If the federal government insists on forcing the states to comply with its immigration rules, then yes, states should have the option to secede.

    • Replies: @The Alarmist
  9. Can we just cut to the chase here and have ICE and the Trump Administration Dept of State ignore these black robed clowns?

    • Replies: @jtgw
    , @pyrrhus
  10. jtgw says:

    I seem to recall Lincoln actually arrested judges who defied his unconstitutional orders. So I guess there’s precedent. It’s probably time we all realized the Constitution is just a piece of paper and doesn’t actually restrain anything.

  11. @jtgw

    I’d take the view that immigration falls under international commerce, subject to regulation by Congress and expressly reserved to the Feds. Naturalisation, i.e. becoming a citizen, is provided for separately.

    • Replies: @jtgw
  12. pyrrhus says:
    @john cronk

    Fine analysis. I would add that not only did the plaintiffs not have standing, but actions under the 1952 statute appear to be not reviewable at all by the judiciary, and some courts have held such.
    But the woman representing the Justice Dept. appears to have been highly incompetent and negligent, saying there had been no arrests to her knowledge. That’s an extremely rookie mistake, she should have said yes.Was this Justice Dept. sabotage, or just complete incompetence. On important cases, we need to get some people in there who know what the hell they are doing. This is my opinion as an experienced litigator in Federal Courts.

  13. pyrrhus says:

    That’s where we are heading, I think, especially when the courts have no jurisdiction, as in this case.

  14. jtgw says:
    @The Alarmist

    Hm, that’s not such a bad argument, but I’m not convinced migration should be treated in the same category as movement of goods.

  15. A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security.

    The problem is in interpreting what this means. Clearly the Executive Branch can interdict people with AIDS or ebola, or who don’t have their vaccinations, but what IS the national security and in what respect are all the citizens of seven quite different countries and even citizens of other countries who have been to those countries a danger to health or national security?

    The point I am making here is that it is probably true on purely technical grounds that the courts have no right of review, but that rather assumes that the President is acting in good faith in a time of emergency and needs to take action rather more quickly than normal legislative procedure would allow. So, for example, after 9/11 it was entirely reasonable for the President to order all civilian aircraft arriving in the US to be excluded until further notice while the executive and military figured out what the hell was going on, rather than ask for the matter to be tabled for debate in the House and Senate.

    But what if the Executive Branch is abusing its powers to act in emergencies as part of a strategic plan to stir up trouble? Shouldn’t this be subject to some kind of review of a less drastic nature than impeachment?

    If National Security is anything the President says is National Security, then this is a very poor law. For example the President might issue an executive order banning any aircraft with foreign flight crew from landing in the US so as to protect US airlines from commercial competition on the grounds that this is a matter of national security and claim that this is not subject to judicial review.

    • Replies: @jtgw
  16. jtgw says:
    @Jonathan Mason

    Good points. I imagine Trump thinks that Congress already gave him permission to restrict entry from those seven countries because of that law passed last year, but the law did not grant him the explicit power to bar entry completely in the way that he did.

    I’ve been thinking more about what Congress’ powers over immigration should be relative to the states. It seems reasonable that Congress should have powers to regulate the entry of aliens, but it does seem like federal overreach to give Congress powers to regulate the employment or residence of aliens in the states themselves. If California wants to allow locally based employers to hire anybody from anywhere, while Texas wants to restrict employment to citizens, that should be their rights as sovereign states. But Congress should be able to regulate travel over the border from Mexico into either state; if Congress determines that no aliens shall be permitted entry, it has the power to do that. But Congress shouldn’t have the power to say that some aliens may cross the border but may not receive employment in California; once you’re in, you’re under the jurisdiction of the state.

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