Wednesday, April 21, 2021

Mr. President, the Constitution says, ‘Hey!’


An incredible high school civics lesson played out this week!

Sen. Claire McCaskill meets with Neil Gorsuch (Sen. McCaskill / Flickr CC)

Hat tip to the New York Times for coverage of this ruling and user vrob90 from Atlanta for the comment that made our headline.

First, President Donald Trump’s executive order banned entry by citizens of seven predominantly Muslim countries. Then a district judge in Washington ordered that the US temporarily stop enforcing the order while the question of its legality is considered. Then protests sprang up, especially at airports. And finally, the US Court of Appeals for the Ninth Circuit denied the administration’s motion for a stay of the district court’s order.

Got it? If you do, you know more about high school-level government or civics curricula than Mr Trump, whose Justice Department, through its lawyer, argued that the executive order wasn’t subject to judicial review by our system of checks and balances.

I feel duty-bound to point out to the president that everything is subject to judicial review. It’s a question of degree, but absolutely nothing the government does isn’t subject to review. The founders of this democracy put that review into the Constitution, and it was affirmed in 1803, when the US Supreme Court decided Marbury v Madison, one of about 10 Supreme Court cases every US government student in Maryland is required to know.

As for the degree of review, well, that depends on the nature of what’s being reviewed. Some actions are subject to strict scrutiny, others to ordinary review, and still others to “deference to the president.” Some actions are subject to extra-judiciary review, which means that a court can’t really decide the question, but the judicial branch has to make that finding, not the branch taking the action being challenged.

While the court said the president is owed deference in matters of national security, it said the government’s argument that “national security concerns are unreviewable, even if those actions potentially contravene constitutional rights and protections,” went too far.

In a per curiam order, which means it’s not credited to a specific judge, the ruling said, “It is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

The Ninth Circuit didn’t rule on the legality of the travel ban imposed in Mr Trump’s executive order, which will be the subject of other legal battles; rather, their decision was limited to the question of whether or not the district court’s injunction that temporarily stopped the ban should be lifted. In denying the motion to lift the injunction, the appellate court found that the administration “has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury.”

Mr Trump’s administration has since the ruling said it would not appeal the case to the Supreme Court and then backtracked off of that position moments later. Mr Trump may still write another executive order after fixing some of the problems with the last one. The story comes to us from Rebecca Balhaus and Carol E Lee at the Wall Street Journal. Citing the need for speedy security measures to protect Americans from terrorists, Mr Trump said he would opt for just writing a new order to get what he calls “extreme vetting,” the Journal quoted him as saying.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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