Posted on | February 6, 2017 | 4 Comments
If the Republican-controlled House of Representatives wants to do something about judicial overreach — a pet peeve of conservatives — they could start impeachment proceedings against this judge:
James Robart, the U.S. district judge in Washington State, offered little explanation for his decision to stop President Trump’s executive order temporarily suspending non-American entry from seven terror-plagued countries. Robart simply declared his belief that Washington State, which in its lawsuit against Trump argued that the order is both illegal and unconstitutional, would likely win the case when it is tried.
Now the government has answered Robart, and unlike the judge, Justice Department lawyers have produced a point-by-point demolition of Washington State’s claims. Indeed, for all except the most partisan, it is likely impossible to read the Washington State lawsuit, plus Robart’s brief comments and writing on the matter, plus the Justice Department’s response, and not come away with the conclusion that the Trump order is on sound legal and constitutional ground.
Beginning with the big picture, the Justice Department argued that Robart’s restraining order violates the separation of powers, encroaches on the president’s constitutional and legal authority in the areas of foreign affairs, national security, and immigration, and “second-guesses the president’s national security judgment” about risks faced by the United States.
Indeed, in court last week, Robart suggested that he, Robart, knows as much, or perhaps more, than the president about the current state of the terrorist threat in Yemen, Somalia, Libya, and other violence-plagued countries. In an exchange with Justice Department lawyer Michelle Bennett, Robart asked, “How many arrests have there been of foreign nationals for those seven countries since 9/11?”
“Your Honor, I don’t have that information,” said Bennett.
“Let me tell you,” said Robart. “The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone [President Trump] that says: We have to protect the United States from these individuals coming from these countries, and there’s no support for that.”
Perhaps Robart has been briefed by the intelligence community on conditions in Yemen, Somalia, Libya, and the rest. Perhaps Robart has received the President’s Daily Brief. Perhaps not. In any event, the Justice Department argued — reasonably but not successfully — that it is the president, and not a U.S. District Court judge in the Western District of Washington State, who has the knowledge and the authority to make such decisions.
“Your Honor, I think the point is that because this is a question of foreign affairs, because this is an area where Congress has delegated authority to the president to make these determinations, it’s the president that gets to make the determinations,” Bennett said. “And the court doesn’t have authority to look behind those determinations.”
(Via Memeorandum.) Think I’m joking about impeachment? I’m not. If the president’s executive order was legitimately a matter of national security (as his defenders have argued) then Judge Robart is giving aid and comfort to the enemy by impeding the Commander-in-Chief in the lawful exercise of his duties. Beyond that, however, how else can the constitutional separation of powers be enforced, if the judicial branch disregards its own proper limits and impedes either the authority of Congress to make laws or the authority of the President to execute the laws? Congress has the power to impeach judges, and it ought not neglect to use that power in defense of the Constitution itself.
Liberals have spent decades building up the mystique of the Supreme Court’s authority, and you can go back tot the Bork hearings to show how Senate Democrats have used their own power in attempting to control the court. What have Republicans done to limit the imperial judiciary? Not much. And so this judge in Washington State thinks himself immune to consequences for his bizarre decision to issue a restraining order. Republican members of the House could disabuse Judge Robart of his delusion of immunity. All it would take is for one House Republican to bring forward an impeachment inquiry, and no matter how far the matter proceeded — even if the rest of the House refused to take it up — this would at least make the point that judges who overstep their lawful authority may pay a price for failing to uphold the Constitution.