- The Washington Times - Thursday, March 16, 2017

This week’s rulings against President Trump’s revised executive order on travel and refugees have sparked heated pushback from Republicans on Capitol Hill, who say judges have crossed the line to become adversaries of this White House — and suggested retribution could be coming.

Even some judges seemed worried about the tenor of recent rulings, saying their colleagues appeared to be letting personal beliefs taint their legal reasoning.

“As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy,” Judge Jay Bybee, of the 9th U.S. Circuit Court of Appeals, wrote in a dissent Wednesday. He said his colleagues erred in not agreeing to rehear Mr. Trump’s defense of his original executive order.

Mr. Trump has now battled the courts for a month and a half over his vetting policy. He lost in a federal court in Seattle, won in a Boston court, then lost in the 9th Circuit.

He went back to the drawing board and rewrote his order to accommodate the appeals court’s objections. The revised order limited the number of countries from which the administration sought to suspend travel and exempted immigrants and visitors who already have ties to the U.S.

Late Wednesday, a federal judge in Hawaii said it wasn’t good enough and that Mr. Trump’s harsh rhetoric about Muslims during the presidential campaign has poisoned his efforts. U.S. District Judge Derrick Watson issued a nationwide temporary restraining order.

“This is judicial activism at its worst,” said Rep. Jeff Duncan, South Carolina Republican.

Democrats countered that they were happy to see courts brave Mr. Trump and step in to stop him.

“I’m grateful for the judiciary system,” said Rep. Nanette Diaz Barragan, California Democrat. “It’s a checks-and-balance system that we have in this country that is meant to provide the oversight when you have a president who is doing whatever he wants to regardless of the law.”

Mr. Trump railed against the decision, calling it “unprecedented judicial overreach” and wondering whether it was made for political reasons.

Conservative legal scholars said whatever the political motivations, the judges who have ruled against Mr. Trump botched the law.

That assessment included a decision handed down early Thursday by a federal judge in Maryland, even though it only enjoined enforcement of the portion of the order restricting travel of foreign nationals from six countries.

“In none of those decisions did the judges actually discuss the legality or constitutionality of the federal immigration statute at issue,” said Hans von Spakovsky, senior legal fellow at The Heritage Foundation. “This is an indication that the judges were looking at this as a policy question: Did they like or not like the policy?”

Curt A. Levey, a constitutional law scholar with FreedomWorks, said the rulings against the executive order are of particular concern because of the degree of judicial activism.

“They are not inventing a new rule of law; they are ignoring their own precedent because they are personally opposed,” Mr. Levey said.

The Seattle and Hawaii district courts are both part of the 9th Circuit, which ruled against Mr. Trump’s original order.

On Wednesday Mr. Trump raised the idea of splitting up the circuit — the country’s most liberal and its largest, encompassing nine states, two territories and a fifth of the U.S. population.

Coincidentally, House Republicans had scheduled a hearing Thursday on splitting the circuit, and the judges’ dislike for this president was a key piece of evidence.

“Some of the courts in your circuit are playing a dangerous game here,” said Rep. Ron DeSantis, Florida Republican. “I understand there’s antipathy in our country that is reflected on some of your courts for the current president. But that is not enough of a reason to wade into some of these sensitive matters of national security.”

“I think the courts, while they think they’re saving the day, from some people’s perspectives, I think they may end up in the long run undermining their proper role,” he said.

Three judges from the 9th Circuit, including two of the four who joined Judge Bybee’s dissent and said the court should have reheard Mr. Trump’s appeal, were part of the panel — though they declined to weigh in on specifics of the case.

Judge Bybee, who wrote the opinion saying the 9th Circuit should have heard the appeal en banc, said judges need to know their roles.

“Even when we disagree with the judgment of the political branches — and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end,” Judge Bybee wrote. “Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians.”

Josh Blackman, a professor at South Texas College of Law, said the courts are holding Mr. Trump to a different standard than his predecessors, and that sends “a bad signal to the public.”

“The fact the president is violating political norms does not mean the court should violate judicial norms,” he said.

But curbing judicial activism could be a tricky pursuit in the short term. Federal judges are appointed for life terms, which means the only way to remove them is through impeachment — a tactic analysts say Congress is unlikely to pursue.

“That’s a dangerous road to go down,” Mr. Levey said. “It can so easily be politicized.”

While some have called for Mr. Trump to openly defy the courts’ orders, legal analysts say that is unlikely. “Trump is blustering, but he has been complying with the orders dutifully,” Mr. Blackman said.

Open defiance of the courts would essentially be “sinking to the level of judicial activism,” Mr. Levey said. Instead, he suggested that Congress could look at ways to question judges about their decisions.

“All you would need is probably a little bit of pushback — a couple of subpoenas to get judges to appear before Congress,” he said.

Noting that Obama appointees make up nearly 40 percent of the federal judiciary, Mr. von Spakovsky said the solution in the long term is for Mr. Trump to get to work appointing his own judges.

“The only thing you can do is try to be better at trying to pick good conservative judges who believe in the rule of law,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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