Monday, February 27, 2017

Judicial Review of Executive Action: Trump Card for Travel Ban

Federal Judges Decide Constitutionality 

Under the Constitution's separation of powers, with its built-in system of checks and balances, each branch has certain roles to play. The current controversy over the popularly described "Travel Ban" -- formally known as Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769) -- is a good reminder that federal judges exercising their power of judicial review ultimately decide whether executive action comports with the Constitution.

After a federal district court judge in Seattle temporarily restrained enforcement of EO 13769 based on his view that plaintiffs were likely to succeed on their constitutional claims, a three judge panel of the Court of Appeals for the Ninth Circuit agreed and denied the government's emergency motion for a stay of the temporary restraining order pending appeal. The government then advised the court of appeals that it did not want further review at this time and that it would issue a new executive order.

Although to date no new order has been issued, there is likely much more to come. And while preliminary, the rulings demonstrate that the judiciary intends to apply vigorously to EO 13769 (and any future versions) the constitutional doctrine of judicial review, which provides that the judiciary is the final arbiter of the constitutionality of legislative and executive action. 

I find it quite interesting that lost in all the turmoil over EO 13769 is the clear acceptance by the President of such review. Indeed, for all its zeal in trying to implement it -- and the President's extremely blunt criticism of the courts and their rulings to date -- the Administration has adhered to the court rulings and conformed its conduct without delay. Even in the heat of a bitterly disputed debate over the President's authority, he and his team appear to understand the importance of the rule of law and adhering to the long-established tradition that the federal courts have the last word on what does and does not pass constitutional muster.