https://tsukesthoughts.wordpress.com/2017/02/07/reckless-robart/
Reckless Robart
By now everyone will have heard about the ruling of Judge Robart. Leaving aside the fact that he made a nationwide ban on an issue raised by two states and the text of the relevant immigration law which gives plenary power to the President over immigration law, I find his decision legally problematic on three grounds. Not only is it the wrong decision here but the precedent it sets can be used by other judges, whether on the right or the left, in the future.
Intent
At your first year of law school one of the very first subjects you will discuss is something called statutory construction. In essence it is how to interpret laws and executive orders made by the executive and legislative. To simplify things for everyone, you first limit your view to the statute itself. If there are any ambiguities you then try to divine legislative intent, which the courts normally do by looking at the transcript of the deliberations. In rare situations when you still cannot get the intent by these methods then you go to other factors that may help you divine intent.
In this case the muslim ban was not borne out by the text of the order as the word muslim does not appear there. In any case the travel ban was so limited in scope that most Muslim countries like Indonesia, Malaysia, or even Kuwait in the same region are not even affected by it. The judge did not even bother looking for any deliberations nor did he give any credence to the stated intent of the administration which was to ban travel from the most unstable countries in the region.
Judge Robart immediately went to statements made by President Trump during the campaign trail to derive legislative intent. What is worse he even gave credence to statements by former Mayor Giuliani, a well known Trump ally, but one that is not part of the administration for corroboration.
Think about the implications of this. Any president at any time can have his public statements, even before he became the president, taken and used to provide intent for a certain executive order to have that blocked. What is worse is even his allies can have their statements taken as legislative intent for the president. By the standard Robart is using any comments someone like President Obama even while he was a senator could be used to block his orders. Any comments by Soros, Emmanuel, or any other ally could be used to block executive.orders. By his standard you can block any thing you want.
Effectivity
In the courtroom the government argued that the travel ban protects the country from terrorists. Robart said he found no support for these claims. Instead of judging based on constitutionality Robart instead judged based on how effective the ban was. I believe this is something he has no right to do.
Generally there are two sources where people draw their decision making legitimacy from. Electability or expertise. Congressmen, Senators, and the President make laws and executive orders that they believe is effective and are believed to have the right to do so because they have been elected by the people. The second one is expertise. The various heads of the government agencies and the people working under them are assumed to have expertise on the subject as they were appointed by the president and confirmed by the senate.
Judge Robart has neither of these, which is why he was asked to ajudicate based on the constitutionality of the issue and nothing else. There is no limits to their power once the judiciary can strike things down based on effectivity. Do you have a judge that does not like Obamacare? Well he can find that they are not effective in reforming healthcare and strike it down. Do you have a judge that does not like social security? Well he can find that it is not effective at providing a social net and strike it down.
Minorities
One of the questions of the case was whether or not you could give priorities to religous minorities which were persecuted. The President would normally have the power to do this given that he has wide plenary powers given to him by the legislative to tailor immigration to national interest.
Understand the implications of this. If the Germans decided to start gassing their jews again you would not be able to prioritize them for the refugee program. Given that religions are banned , the same argument can also be applied to other divisions such as nationalities or race. If the South Africans decided to massacre their white population you could not give them special treatment. If the Chinese did the same to Tibet you could not either. In fact arguing in this same line of thought it is arguable that you could not even give Syrians special treatment as that would discriminate against everyone else.
I am actually stunned at these decisions and the massive judicial overreach that they represent. I do not see anyway they can hold but if they do then the precedent they cause will change our legal system forever.
