by Max Brantley
[T]he Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.The executive does have some power over immigration decisions, Vox notes.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). 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.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.
That’s why the forcefulness of the ruling is surprising. In an otherwise relatively cautious and technical ruling, the three judges on the Ninth Circuit panel reserved their strongest language for defending the role of the courts against what they saw as executive overreach.Trump — and the Arkansas legislature, it should be noted — have disdain for the courts unless they rule in their favor. Trump's disdain goes far beyond immigration matters, but include profound disrespect for past standards of mixing private business with government work.
Trump’s tweets have raised serious concerns about his attitude toward the independence of the judiciary; his own Supreme Court nominee has issued (mild) criticism of the president’s attacks. But the thing about undermining the independent judiciary is that you can only do it by intimidating the judges. And the judges who wrote the Ninth Circuit order have made it abundantly clear that, even in the name of national security, they will not cede their power as a co-equal branch.