Grandstanding Judicial Supremacy Must End
Here we go again. Last month it was Seattle District Judge James L. Robart who decided he had the authority to contravene the president's executive order "on a nationwide basis," temporarily banning entry into the United States of people from seven terrorist hot spots (Somalia, Yemen, Iraq, Iran, Libya, etc.). Come on in folks, don't mind the laws of the United States! All are welcome.
Judge Robart, whom no one had ever heard of before, got a lot of play in the anti-Trump media (which is to say, the media tout court) and has doubtless been dining out on that sever since.
As I said at the time, Judge Robart's restraining order, especially its nationwide application, struck me as legally dubious and, practically speaking, unworkable. Can we really have six or seven hundred district judges making policy for the entire country? For make no mistake, that's what Judge Robart did. At the behest -- or with the collusion -- of a couple of blue state attorneys general, Judge Robart decided that he had the authority to contravene a legally framed executive order issued by the president of the United States and to make himself, Judge James L. Robart, the supreme law of the land.
Since he happened to reflect the establishment anti-Trump consensus, it was all a big hit with the establishment anti-Trump media. So it is no surprise that in the wake of the president's new travel ban, another grandstanding judge -- several of them, in fact -- is eager to horn in on the publicity. Yesterday, U.S. District Judge Derrick Watson from Hawaii made a bid for his fifteen minutes of notoriety and blocked the travel ban just hours before it was set to take effect. According to Judge Watson, the travel ban was not about national security, as the president said, but "significant and unrebutted evidence of religious animus."
I'd say that was ridiculous on the face of it. If Donald Trump wanted to institute a travel ban against Muslims, why would he neglect to include countries in which more than 85 percent of Muslims live? No, the ban has to do with national security, not religion. But leave that to one side. The real issue is: Who asked Judge Watson? As Andrew McCarthy has explained with his usual perspicacity when Judge Robart weighed in on the first travel ban, the president has plenary power to decide who may and who may not travel to the United States.
McCarthy cites federal immigration law Section 1182(f):
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 (emphasis added).