The first rebuke to Trump's initial flurry of Executive Orders came from the courts, in the form of a Temporary Restraining Order suspending (inter alia) the U.S. Refugee Admissions Program, and a refusal to stay that Order. Many lawyers are cheered by these rulings --and rightly so.  It's also important to understand their significance, so as to not lose sight of the real goals of a struggle to restrain a domineering presidency:  We should be looking for deeds, not just words.

         The denial a stay was a positive step, but it shouldn't be overstated as it is purely preliminary. There was already a call by one of the judges on the circuit for rehearing en banc, which signifies division on the 9th Circuit's bench about the decision.  Also, in some form or another, the matter is headed to the Supreme Court (and for reasons I will explain in later posts, one shouldn't be sanguine about the chances of a 4-4 split among the Justices). Many challenges to the executive brought by the ACLU and other organizations were initially successful, but ultimately fruitless owing to later reversals. More often than not, they were stymied by the use of procedural evasions that courts use to avoid addressing the heart of the matter.

         That said, many people forget the ultimate ruling, but remember the lofty language. In Washington v. Trump, the opinion includes a resounding defence of the rule of law. What rings false are the court's many citations to Boumediene v. Bush as a source for that principle. In Boumediene, The Supreme Court opined that the prisoners subjected to the horrors at Guantanamo were entitled to a reasonable opportunity to challenge their detention. The rhetorical rebuke to the executive yielded nothing, however. The D.C. Circuit gutted--and openly derided--the Supreme Court's instructions; the Supreme Court refused to end that defiance, or even to address it. Nevertheless, much attention was paid to Court's fine-sounding phrases about the constitution and very little was given to its failure to implement its plan to restore the bare minimum required by the rule of law. This leads many who opposed the assault on the constitution to a skewed view of the role the courts could and would play in defending it.

         Trump's order asserted an unreviewable authority over immigration. It denied the courts any role in enforcing the constitutional rights of those affected by the misuse of that authority, even when they have well-defined rights (especially green card holders). In Boumediene and other war on terror cases, the Supreme Court refused to accept that diminished role. Unfortunately, the Court was often willing to limit the right to challenge the executive to the point that it became meaningless --as would be the case here if the courts are limited to examining whether the policy to bar refugees has no rational basis or is unsupported by any evidence. That of course is Trump's backup argument: if you won't let me have the final word in theory, at least let me have it in practice. The rule of law requires more.

         Everyone remembers Brown v. Board of Education. Very few remember Brown II. When I clerked for the late Judge Robert L. Carter (an architect of Brown) he told me that his greatest disappointment was the inclusion of the phrase "all deliberate speed" in Brown II, which allowed cities to avoid desegregating their schools for years, and destroying the momentum of that phase of the civil rights movement. Lawyers must keep their eyes on the prize --court rulings that have real life effects, like United States v. Nixon. That ruling was possible because the presidency was under fire from all sides; the court was not required to play the leading role in the resistance.

        Lawyers should celebrate the courts' rhetorical defence of the rule of law, but be alert to the possibility that this may not extend to real restraints on the executive's abuses. Guantanamo Bay is still open nine years after Boumediene; Bush was never impeached. Don't expect the courts to take the lead, but cheer them on when they rally.

 


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