Judicial Overreach 2.0: Here We Go Again

By Dan Cadman, March 13, 2017

On March 6, President Trump issued his much-awaited revised version of the executive order (EO) "Protecting The Nation From Foreign Terrorist Entry Into The United States", ("Travel Ban 2.0" as Center for Immigration Studies Executive Director Mark Krikorian has described it).

The first iteration hit a legal wall at the federal Ninth Circuit Court of Appeals, which upheld a "temporary" restraining order of indefinite duration issued by a U.S. District Court judge in Washington State. Neither the district nor appellate court orders were models of judicial probity. (See the series of four different authors' entries on the Center's home page, bundled under "Ninth Circuit Overreach" for many of the objections to the courts' collective decisions.)

Apparently after much internal debate, the administration decided to forego further appeal to the Supreme Court — probably wise, given the split court, and the still pending Senate confirmation hearing for nominee Neil Gorsuch. Instead, it cancelled the earlier executive order and issued the new, revised one.

As could be expected, in short order several states weighed in, as they did the first time, to initiate lawsuits against the prospective and highly speculative results that they assert would attend to the EO. Hawaii, followed by Washington State (which litigated the first order to a standstill) were first out of the box. This is not a coincidence, but clearly a well-thought-out litigation strategy by the litigious states, all of which have Democratic attorneys general. Notably, both Hawaii and Washington are within the domain of the notoriously liberal, and persistently overturned, Ninth Circuit.

In announcing the state's decision to sue, Hawaii's attorney general said that Hawaii felt obliged to sue not only because of its historic commitment to diversity (my words, not his), but because the EO was likely to have an adverse impact on tourism, on which Hawaii relies so heavily. (One presumes that this will form the basis of the tort harm Hawaii will claim in its filing.)

Well, who knew? I had no idea that Hawaii was the preferred travel destination of nationals from the countries now enumerated in the EO: Iranians, Libyans, Sudanese, Somalis, Syrians, and Yemenis (Iraqis have been dropped) — or that they came in such numbers as to cause a dent in Hawaii's economy if their entry is suspended for a few months.

This is of course absurd; it's just about as specious as Washington State's prior claim that its state universities would be harmed by the loss of international students from those countries. But, absurd or not, that was what both the district and circuit courts seemed to use to confer "standing" on Washington in order to avoid dismissing the suit, to the extent one can discern any legal bases at all either for accepting the case or for their subsequent rulings.

It's wonderful to be a judge with lifetime tenure, isn't it? If you decide today that the sky is orange, who can say otherwise within your domain? You are indisputably captain of your legal ship with boundless powers. "Make it so, Number One."

Watching all of this play out is unsettling in the same way as watching a mongoose and a snake go at it: You're just not sure which is going to prevail, but it's certainly thought provoking. Here's some of what I've been pondering:

What is the administration's strategic game plan? I'm not sure I see it, although I admit I can be dimwitted sometimes. They had to know that the same cast of Democratic antagonists were going to file suit again. When you strip away the high-sounding bloviation uttered for the cameras, this is, after all, less about religion or "travel bans" or any of that claptrap, and more about trying to mortally wound the Trump administration early in its incumbency. If this version goes down the same Ninth Circuit cul-de-sac that the first one did, the administration will be obliged to file a petition for certiorari with the Supreme Court or face a deeply embarrassing setback (again). But there's still no conservative ninth swing seat on the high court and therefore the possibility of a tie (in which case, the ruling of the lower court(s) remains in place) looms as large as it did in the first iteration of the EO. That leads me to my second concern.

Where is the Republican Congress in all of this? They don't seem to be taking any bulls by the horns with the singular exception of Obamacare repeal and replacement (a process that has been sausage-making at its ugliest and most public). When interviewed recently by Fox News host Tucker Carlson about the lack of anything tangible coming out of Congress, and why they will only be in session for eight days during April, House Speaker Paul Ryan was less than persuasive about the reasons.

One of the things Ryan mentioned was that they were focusing intently on blocking last minute Obama-era regulations that they felt were inappropriate, and for which Congress only has limited time to repeal legislatively. That's true, but overlooks the obvious: Trump's executive branch can do that at any time simply by publishing the rescission in the Federal Register.

Ryan also said the Senate is caught up with a busy agenda involving the advice-and-consent confirmation process: "We have the Senate now, they have to approve Donald Trump's cabinet. They have to put 1,200 people through the Senate to populate the Trump government, and Chuck Schumer can burn up to 30 hours per person." Wow. I know the federal government is a behemoth these days, but the last time I checked, the cabinet hadn't grown to over a thousand strong. Some of those 1,200 are positions like Deputy Assistant Undersecretary for Inventory Control. (Okay, I jest, but barely.) They don't need immediate attention. Meantime, the clock just ticks away as the Supreme Court nomination, which is of paramount importance, goes nowhere.

So why is the Republican-majority Congress wasting the precious "first 100 days" with minutiae instead of prioritizing the nominations, and passing laws that languished for years under the Obama administration? Exactly whose side are they really on? I hope that Carlson can persuade Senate Majority Leader Mitch McConnell to join his show for an interview; I'd be most interested to hear what he has to say.

So far, it looks to me like congressional Republicans are playing a defensive game and running out the clock. The problem here is that they aren't yet ahead on the scoreboard. They seem to be more comfortable as a minority party in the Congress than being in charge. If they prove incapable of serious governance, they may get their perverse wish in the midterms, and if so, it won't be because the people who voted for Trump have become disenchanted with his agenda; it will be because they're smart enough to see through smoke, mirrors, and hot air and to recognize congressional inactivity for what it is.