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.

Judicial review is, quite frankly, essential to the orderly functioning of our government, because someone has to have the final say. Interestingly, while it generally was viewed favorably and taken for granted by many of the Framers, such review is not expressly provided for in the Constitution. In Federalist Paper No. 78, Alexander Hamilton laid out the need for this power:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Chief Justice John Marshall adopted this view in the seminal 1803 case of Marbury v. Madison, in which he stated that "the particular phraseology of the Constitution of the United States confirms and strengthens the principle . . . that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument." 

In the modern era, the Supreme Court unanimously reaffirmed the enduring vitality of judicial review in Cooper v. Aaron, a case growing out of the Brown v. Board of Education decision striking down school segregation.
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared . . . that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.
Thomas Jefferson disagreed strongly with letting unelected judges have this power. In a letter he wrote in 1820, he decried “the judges as the ultimate arbiters of all constitutional questions” and viewed it as “a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy.” (The oligarchs being the federal judges.) In Jefferson’s view, “when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.” As in other debates, however, Jefferson's view did not prevail.

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The question of whether EO 13769 is unconstitutional in certain respects raises many interesting issues and remains open; a new order may moot the original dispute but is likely to be challenged on the same grounds. At the same time, even its proponents agree that the rollout should have been handled quite differently. The good news for now is that whatever his disagreements with the judges and their rulings, and however strongly he proclaims them, the President's acceptance of judicial review supports the notion that ours remains a government of laws. 

Just don't tell him what Jefferson had to say about this issue . . .

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