Old and busted: Friday afternoon document dumps. New hotness: Friday Night Fights between the executive and the judiciary. After a week filled with lawsuits over Donald Trump’s executive order on immigration, Seattle federal district judge James Robart imposed a nationwide temporary restraining order on enforcing most of its provisions. At that time, though, the State Department had already canceled an estimated 60,000 visas for nationals from the seven high-risk nations included in the EO.
That changed this morning:
BREAKING: State Department reverses visa cancellations for foreigners after judge puts hold on Trump executive order.
— The Associated Press (@AP) February 4, 2017
DHS also announced a return to status quo ante in all other respects, at least until the Trump administration can win a stay of the restraining order:
JUST IN: DHS suspends "any and all actions implementing the affected sections" of Pres. Trump's immigration order following judge's order. pic.twitter.com/E4E47ioV6A
— ABC News (@ABC) February 4, 2017
Does that mean that the White House has thrown in the towel? Not hardly. Donald Trump made his feelings clear in his preferred forum. As usual, the president didn’t mince words about his opinion on the TRO and the judge who ordered it:
Let’s pause for a moment to recall that this is how the systems of checks and balances works, and has worked in the past. In fact, nearly the same set of circumstances took place when Barack Obama tried using executive authority for the DAPA and DACA programs, with DHS calling it “prosecutorial discretion.” Twenty-six states sued over the executive branch’s defiance of statutes and the extra costs it imposed on the states, and a district court issued TROs which were upheld in the Fifth Circuit and applied to all states. Judge Robart pointedly noted that he followed the same logic and cited Texas vs US as his precedent (page 6, lines 1-8), even though Robart’s court is in the 9th Circuit.
Still, this TRO seems like a reach. DAPA and DACA forced states to spend money on programs without authorization from Congress while leaving illegal immigrants unprosecuted. The authority to restrict access to the US falls more within the executive branch’s authority, both as a constitutional and statutory issue. As long as the policy has a rational basis and is tailored to that rational purpose while dealing with people with no legal status as US residents, the White House should be able to enforce their policy without interference from the court. A temporary restriction on entries from only seven high-risk nations is at least a rational approach, even if it’s a policy with which some may disagree.
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [Footnote 4/2] In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [Footnote 4/3]
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. [Footnote 4/4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
When Obama pursued DACA and DAPA, it was within Zone 2 at best, and likely Zone 3, and the 5th Circuit appeared to agree. Their rulings certainly made it clear that the “congressional inertia” about which Obama continuously complained did not cede him any extra authority on whether to enforce internal immigration law, let alone create or expand domestic programs beyond statute.
On entry policy, however, the Constitution and Congress have both traditionally given very wide latitude to the executive, either expressly or implicitly. (See for instance Obama’s last-days change on the “wet foot dry foot” policy with Cuban refugees.) Therefore the burden for maintaining a TRO would be extremely high, and in this case arguably too high for even the 9th Circuit to overcome. To claim that the executive does not have the authority to determine entry policy and the ability to set new requirements for vetting entry applicants would be to argue that the US does not have the sovereign authority to decide who can and cannot enter the country, and that’s clearly absurd.
The Trump administration has a good case on appeal, but in the meantime they are taking the proper steps to comply with the rule of law. They can restore the EO if and when courts rule in their favor, and extend the 90-day pause all over again if need be while recalculating their vetting processes for later normal operations. The White House is in fact cooperating within the checks and balances of constitutional government, and that is exactly what they should be doing.
Suddenly, checks and balances have become cool again with the national media and the Left. That’s just one of the side benefits of having a Republican president.