Friday, February 10, 2017

The 9th Circuit Court states the obvious: Trump has no respect for the separation of powers

Republicans must stand up to Trump when his encroachments go too far

The 9th Circuit Court of Appeals yesterday affirmed a previous judgment from a lower court that put President Donald Trump’s immigration ban on hold, and refused to put any sort of stay on that ruling. That original judgment found that Trump’s executive order banning people from certain Muslim-majority nations from entering the U.S. was unconstitutional.

Yesterday’s 3-0 decision held that the administration failed to produce any evidence that a stay of the previous order was needed. From the decision:
To the extent that the Government claims that it has suffered an institutional injury by erosion of the separation of powers, that injury is not “irreparable.” It may yet pursue and vindicate its interests in the full course of this litigation.
Washington State on the other hand, which brought the original suit against the Trump administration, did provide ample evidence that they were unduly burdened by the executive order:
When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms.
The 9th Circuit Court of Appeals made the right decision. The Muslim ban – the correct moniker for Trump's executive order, as affirmed by Rudy Giuliani – was based on prejudice and unwarranted fearmongering.

But there was another disturbing aspect to yesterday's decision, and it had to do with part of the Trump administration’s legal argument. Trump’s legal team asserted that “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable” by the courts themselves, “even if those actions potentially contravene constitutional rights and protections.”

The 9th Circuit Court soundly rejected that notion, stating in no uncertain terms, that:
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
The president’s comments on the judiciary have similarly been discouraging, to say the least. He described the author of the original ruling as a “so-called judge,” a blatant attempt to belittle the position he specifically holds, and perhaps diminish the role that the judiciary plays in our nation at-large. Even his own Supreme Court nominee Neil Gorsuch has said he was demoralized by Trump’s comments.

Trump and his administration have demonstrated that they don’t regard one-third of the three branches of government with much respect. It’s only a matter of time until he does the same to Congress, if and when they have a disagreement with the president on a separation of powers issue.

I’m hopeful that Republicans will join Democrats in standing up to this president, who has already demonstrated his preference for assuming some authoritarian tendencies since assuming office last month. If Republicans don’t take a principled stand against Trump, then I worry that our democracy may be unrecognizable in the years ahead as a result of their inaction.

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