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Stephen Miller's Very Bad Day

The decision to send Stephen Miller out to defend the president’s immigration executive order on the Sunday TV talk shows was a mistake. Miller not only revealed his ignorance of the law and made patently false statements. For a new and inexperienced political appointee representing the president of the United States, he was incredibly arrogant. Trump thought Miller did just fine and tweeted as much.

In his performance, Miller revealed the kind of “politics is war” approach favored by his mentor, David Horowitz. As Horowitz told The Washington Post, “conservatives don’t have any fight. They don’t have any stomach for it. ... Stephen Miller had that from the get-go.” And this kind of fight is what Donald Trump seems to be looking for in his White House staff.

The president should have thought twice before tweeting so positively on Miller’s performance. On "Meet the Press," Miller confused “judicial supremacy,” which he argued was invoked by the 9th Circuit Court countermanding the 90-day temporary ban; with “judicial review” of the law, which is a principle of the U.S. Constitution. According to Miller:

There's no such thing as judicial supremacy. What the judges did, both at the ninth and at the district level, was to take power for themselves that belongs squarely in the hands of the president of the United States… .The bottom line is that a district judge, a district judge in Seattle cannot make immigration law for the United States, cannot give foreign nationals and foreign countries rights they do not have, and cannot prevent the president of the United States from suspending the admission of refugees from Syria.

On "Fox News Sunday" with Chris Wallace, Miller went even further, telling Wallace that “the president's powers here are beyond question" and not subject to judicial review. According to Miller, the 9th Circuit judges obviously ignored existing law and made a political decision to rescind the ban. The president has the authority to make decisions on immigration ... and "he has Article 2 foreign powers to also engage in conducting border control and immigration control into this country.  Those powers are substantial. They present the very apex of presidential authority.”

The 9th Circuit judges disagreed, putting it this way:

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. ... Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches ... We are called upon to perform that duty in this case.

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”).