This Hawaii K-O Is a Blow to the Presidency, Not Just To Trump

“Watering it down” did not work.

Travel Executive Order #2 got hit with a TRO from a US District Court judge in Hawaii, prompting some presidential fury at his rally tonight. So much for the cleaning up of the green card issue, removing Iraq and giving advance notice.

Now, I’m reminded of our conversation with Cornell Law Professor (and LegalInsurrection.com founding blogger) William Jacobson, right after the Ninth Circuit left in place a restraining order against Version 1.0

At the time, I was asking whether Trump should re-work the order to satisfy the judicial objections, or appeal it up to the Supreme Court.

Those most interested in the policy issue—dealing with refugee vetting—favored the reworking option. Just secure the process.

But Jacobson, and his fellow law professor, John Eastman at Chapman School of Law, were adamant about appealing it: accepting, even briefly, the freeze on President Trump’s order is serious. It not only extends constitutional due process to apply for a visa, and strips the presidency—not merely Trump—of its clear constitutional and statutory powers to control who is permitted to enter the United States.

Jacobson and Eastman were right, and we should’ve listened. Or, at least the administration should have.

It doesn’t matter whether you think Trump’s pair of orders are wise, or dumb, or necessary, or brimming with bad intentions. It doesn’t matter what he said on the campaign trail. The Ninth Circuit’s dissenting judges were clear that “the wisdom of the policy choices made by [the president] is not a matter for our consideration”. Only whether he acted within the powers of the presidency. Which, they say, he did.

As Jacobson keeps reminding us: the power to control entry into the country is uniquely a presidential power.

Subject to judicial review, but deference. If a judge can throw out certain presidential powers on the basis of who the president is, you don’t have a Constitution.

Now, only the Supreme Court could restore that power, not just for this president, but for future ones. Ones you vote for. Ones whose orders you think are wise or necessary.

Also today, in a related development, the 9th issued an order denying a so-called en banc hearing, on the DOJ appeal of the Washington state district court’s stay of Version 1.0. Which gives us a pretty good idea of what they will do with an appeal of 2.0.

Tweeting and fuming about this won’t help. It’s not about public reaction.

And, for now, extreme vetting isn’t going to happen.

But, for the preservation of the essential powers of the presidency, and not just his presidency, Trump and his team must get the Supreme Court involved.

 

 

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