Judicial disregard of the Constitution and its cardinal principle of separation of powers was on full display last Friday when a federal district judge in Seattle substituted his uninformed judgment for that of the president of the United States on an urgent matter of national security.
U.S. District Judge James L. Robart, who acted last Friday in a case brought by the states of Washington and Minnesota, blocked at least temporarily the implementation and enforcement of President Trump’s January 27 executive order, "Protecting the Nation from Foreign Terrorist Entry into the United States." The executive order had suspended the admission of refugees to the United States, including from Syria, and of non-U.S. resident travelers from seven majority-Muslim countries considered prone to terrorism.
Contrary to charges by leftists and Islamist supporters, the executive order did not discriminate against Muslims. Only one country on the list of seven — Iran, the world's leading state sponsor of terrorism — is among the ten countries with the largest Muslim populations. Non-Muslims as well as Muslims from the seven countries selected for additional scrutiny by the president would be affected by the executive order. The countries themselves were selected because they are nurturing grounds for the export of terrorism, a perfectly rational basis to distinguish one country from another for the purposes of national security.
Judge Robart's half-baked decision, which he purported to apply nationwide despite a far more thoroughly reasoned decision to the contrary by another federal district court judge in Massachusetts, was bereft of any legal analysis. It provides a classic example of judicial power run amok.
Judge Robart totally disregarded Supreme Court precedent as to the president's inherent constitutional authority to conduct the nation's foreign policy. He also ignored Congress’s express affirmation of the president's power to "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" if he "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." That is precisely what President Trump's narrowly tailored executive order, focusing on the seven countries listed previously by the Obama administration as countries of "concern," was intended to accomplish. It directed a pause — not a permanent ban — to provide a period of review for relevant agencies to evaluate current vetting procedures and to propose new procedures for implementation.
As galling as Judge Robart's total failure to decide the case before him on the basis of the law, not his personal biases, was his arrogant claim of superior knowledge over what constituted a potential national security threat. During oral argument, Judge Robart said to the Department of Justice attorney, "You're here arguing on behalf of someone who says we have to protect the U.S. from these individuals coming from these countries, and there's no support for that." He made this assertion without any proof before him on the record. The affected countries all have been proven unable to control both terrorism within their borders and the export of terrorism outside of their borders. It is up to the president and commander in chief of the United States, not a judge, to make that determination.
It is not hard to imagine the revulsion that the Founding Fathers would have in confronting Judge Robart's rash decision.
Thomas Jefferson warned about the danger of the judiciary becoming "a despotic branch." He regarded judges inserting themselves into matters reserved for the elected coordinate branches of the federal government "dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control."
Alexander Hamilton warned in his Federalist No. 70 against relying on "a plurality of persons" rather than a unitary executive branch in the person of the president of the United States on matters involving national security. The former "might impede or frustrate the most important measures of the government, in the most critical emergencies of the state." He noted that in the conduct of war, "the energy of the Executive is the bulwark of the national security." Today we are engaged in a global war against radical Islamic terrorism.
The Department of Justice has appealed Judge Robart’s temporary restraining order to the Ninth Circuit Court of Appeals, which happens to be the most liberal federal appeals court in the country. Whichever way this court decides, the matter is likely to end up before the Supreme Court. We can only hope that wiser heads will prevail, and the damage Judge Robart has done to our constitutional separation of powers will be repaired.
Joseph A. Klein is a featured author for FrontPage Magazine and the United Nations correspondent for Canada Free Press. He has also authored the books "Global Deception: The UN’s Stealth Assault on America’s Freedom" and "Lethal Engagement: Barack Hussein Obama, the United Nations & Radical Islam." Klein, a Harvard Law school alumnus and practicing attorney, has been a guest on many radio shows as a commentator and has appeared on several TV shows including "Fox & Friends." For more of this reports — Click Here Now.
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