The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Appeals court to weigh Trump executive order

February 7 2017 7 February 2017


The Ninth Circuit Court of Appeals is hearing the challenge to U.S. President Donald Trump’s ban today. He has received plenty of pushback for singling out a "so-called" federal judge in a tweet for blocking his immigration order.

Will Baude considers the difference between executive official criticizing a court’s decision and it criticizing its authority:

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

Yves Boisvert addresses the independence of U.S. courts:

How many times have I heard this cliché in lofty speeches? “Judges are the last bastion of democracy.”

We say it. And we write it, but without conviction, or rather without a sense of urgency. It’s a theoretical truth: Judicial power is the last bulwark to prevent abuse of power, and injustice by the government.

Only this time, we have the full measure of the phrase. [Our translation]

Jack Goldsmith scratches his head at why Trump would criticize a judge the way he did on Twitter, and argues that, when all is said and done, the courts are likely to invalidate the EO.

It is possible that he thinks his tweets will pressure the judges to cave and act in his favor.  Judges don’t like to be responsible for national security debacles (which explains the deference they often give the political branches in this context), and thus they might worry about Trump’s predictions of a causal nexus between their rulings and a future terrorist attack.

The much more likely result of his tweets, however, is just the opposite.   The Executive branch often successfully argues—quietly, in briefs and at oral argument, with citations to precedent—for its superior competence to judges in national security, and for the potentially dangerous consequences that might flow from too much judicial review in that context.  But when arguments for deference to the President are made via threatening public tweets before an actual attack, they will certainly backfire.  The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President’s broad delegated powers from Congress and to the President’s broad discretion in foreign relations.  Judges in the short term will be influenced by the reaction to the EO Immigration order, and by doubts about executive process, integrity, truthfulness, and motivation that the manner of its issuance implies.  They will also worry a lot about being perceived to cave to executive pressure.

Photo licensed under Creative Commons by mashageorge

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