by Mitch Kokai
Senior Political Analyst, John Locke Foundation
No, federal Judge James Robart of Washington state is not a “so-called judge,” and President Trump was wrong to apply that label to him.
Robart’s handiwork is shoddy and usurpatory, despite the fact that he is indeed a literal judge.
Even if you assume that the states of Washington and Minnesota have standing to pursue the litigation (Robart asserts implausibly that they “face immediate and irreparable injury” from the executive order, the heart of which is a three-month pause on most travel from seven countries), the stay falls down. It ignores our constitutional scheme and Supreme Court precedent, as the Justice Department brief seeking to reverse it persuasively argues.
First, Judge Robart is trespassing on a core executive responsibility. “The exclusion of aliens is a fundamental act of sovereignty,” the Supreme Court held in the 1950 Knauff case, “inherent in the executive power to control the foreign affairs of the nation.” The courts are not meant to second-guess the executive’s conduct of foreign affairs, or intrude on its plenary power in this area. “It is not within the province of any court,” the court noted in that decision, “unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”
Second, it’s hard to get around the relevant federal immigration law, which says, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”