By JUDGE ANDREW P. NAPOLITANO
Over the weekend of February 11, Trump administration officials offered harsh criticisms of the judicial interference with the enforcement of the president’s immigration order. The January 27 order suspended the immigration privileges of all refugees from Syria indefinitely and all immigrants from seven designated countries for 90 days.
After a federal district judge in Seattle enjoined the federal government from enforcing the executive order and the Ninth U.S. Circuit Court of Appeals upheld that injunction, President Donald Trump’s folks pounced.
They argued that we have an imperial judiciary that thinks it has the final say on public policy — one that will freely second-guess the president in areas that are exclusively his under the Constitution.
Here is the back story.
The Constitution provides for essentially a shared responsibility in the creation of laws. Congress passes bills, and the president signs them into law. Sometimes bills become laws over the president’s veto. Bills are often proposed by presidents and disposed of by Congress.
When challenges to the meaning or application of the laws are properly made, the judiciary decides what the laws mean and whether they are consistent with the Constitution. My point is that there are substantial roles for the legislative and executive branches in the process of lawmaking and that there is an exclusive role for the judiciary in interpreting the meaning of the law.
When it comes to articulating and carrying out the foreign policy of the nation, the president is superior to the other branches. Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are. Congress has given him many tools with which to make and carry out those determinations.
Among those tools is substantial discretion with respect to immigration. That discretion permits the president, on his own, to suspend the immigration privileges of any person or group he believes poses a danger to national security. Though the effect of his suspension may, from time to time, fall more heavily on one religious group, the purpose of that suspension may not be to target a religious group.
Can an immigrant who has been banned from entering the United States challenge the ban?
In a word, yes. Once an immigrant has arrived here, that person has due process rights (the right to know the law, to have a hearing before a fair and neutral authority and to appeal to a superior neutral and fair authority). This is so because the Constitution protects all persons.
The challenge to the president’s exercise of his discretion cannot be based on a political disagreement with him or an objection to the inconveniences caused by the enforcement; it can only be based on an alleged constitutional violation. In the Seattle case, the states of Washington and Minnesota had sued the president and alleged that he had issued his January 27 order to target Muslims, many of whom study or work at state universities.
Can the courts hear such a case?
In a word, yes; but they must do so with intellectual honesty and political indifference. The judiciary is an independent branch of the government, and it is coequal to the president and the Congress. It is answerable to its own sense of scrupulous intellectual honesty about the Constitution. It is not answerable to the people. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference — that judges’ decisions shall not be made in order to produce their own politically desired outcomes.
It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes. When the courts do this with intellectual honesty and indifference to the political outcome, they are doing their job, and we should accept the outcome.
Must the president justify to the satisfaction of judges his exercise of discretion in suspending immigration privileges?
In a word, sometimes; he only needs to do so when a fundamental liberty, such as the free exercise of religion, is at stake — and not when state universities might temporarily lose students or faculty or the enrichment that those from foreign lands often bring.
This can be a dangerous sea for judges to navigate because judicially compelling the president to justify his development of the nation’s foreign policy might expose that development to unwanted eyes and ears who could cause the nation ill in perilous times.
Suppose intelligence officials told the president they believe that Islamic State-inspired lone wolves are about to enter the United States from three of the seven countries but some of them have multiple passports and may leave from one of the other four countries. That would clearly justify the president’s executive order, but it would be foolhardy for him to explain in a court how he came to know that and detrimental to then have to await a court’s approval while the evildoers arrive here.
In our democracy, the president and members of Congress make promises and then convince us that they have kept them so we will re-elect them. The whole purpose of an independent judiciary is to be anti-democratic — to protect the life, liberty, and property of all people from the unconstitutional behavior of the two political branches of the government. When the judiciary does this, it is not being imperial; it is doing what the Constitution requires. If this were not the case, then nothing would prevent the political branches from trampling the rights of an unpopular minority.