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From the Freedom Files – The President and the Courts

By Judge Andrew P. Napolitano

Published on Feb 9, 2017

Last week, in a public courtroom in the federal courthouse in Seattle, the states of Washington and Minnesota — after suing President Donald Trump, alleging injury caused by his executive order that suspended the immigration of all people from seven foreign countries — asked a federal judge to compel the president and all those who work for him to cease enforcing the order immediately. After a brief emergency oral argument, the judge signed a temporary restraining order, which barred the enforcement of the president’s order everywhere in the United States.

The president reacted with anger, referring to the judge as a “so-called judge,” and immigrant rights groups praised the judicial intervention as a victory for the oppressed. The president meant, I think, that Judge James L. Robart had not acted properly as a judge by second-guessing him — that he had acted more like a politician; and the immigrant rights groups felt, I think, that the United States was once again a beacon of hope for refugees.

Here is the back story.

A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries.

When the president exercises powers granted to him by the Constitution or federal statues or when Congress passes bills, one cannot simply sue the government in federal court because one does not like what has been done. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call “standing.” Standing means that the plaintiff has alleged and can most likely show that the defendant has caused the plaintiff an injury in fact, distinct from all others not in the case.

Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump’s order but rather the governments of two states, each claiming to sue in behalf of people and entities resident or about to be resident in them. The court should have dismissed the case as soon as it was filed because of long-standing Supreme Court policy that bars federal litigation alleging harm to another and permits it only for the actual injury or immediate likelihood of injury to the litigant.

Nevertheless, the Seattle federal judge heard oral argument on the two states’ emergency application for a temporary restraining order against the president. During that oral argument, the judge asked a lawyer for the Department of Justice how many arrests of foreign nationals from the seven countries singled out by the president for immigration suspension there have been in the United States since 9/11. When the DOJ lawyer said she did not know, the judge answered his own question by saying, “None.”

He was wrong.

There have been dozens of people arrested and convicted in the United States for terrorism-related crimes since 9/11 who were born in the seven countries. Yet even if the judge had been correct, his question was irrelevant — and hence the answer meaningless — because it does not matter to a court what evidence the president relied on in this type of order. This is the kind of judicial second-guessing — substituting the judicial mind for the presidential mind — that is impermissible in our system. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy and because Congress has assigned to the president the power of immigration suspension as a tool with which to implement foreign policy.






  1. And there’s that whole “Primacy” thing. If we are giving Non-Americans Constitutional Rights, where does it end? France coming here and Amending our 2nd Amendment? For the love of all that’s good, if the President can’t get an easy rendering, how the heck one of us going to have our Constitutional Rights supported? More to the point, when does that whole Article 3, Sec. 1 “Good Behaviour” clause kick in?

    1. Agree. This means the end of sovereignty, the end of America. The Democrats packed our country with illegals who will vote Democrat forever since they were the one who brought them here. Now if the whole world is under our Constitution then everyone in the world is a citizen. End game, global citizen under the UN but the land mass still called America. No cohesion, and the Constitution just used for subversion with liberals forever in charge.

  2. So, people and experts keep writing that what the judge did is basically against the Constitution. And? What good does all the rhetoric mean when nothing is done about it? A lot of upset and anger we all have that liberal agenda driven so called judges rule for their whims. I guess it’s all legal, or something legal would be done about it, and Trump as President never would have had to “answer up” to lower judges anyway. So what is the point of all this? A lot of hot air and no teeth mean get over it, the left wins again and the Constitution is meaningless. It also means the left is showing they rule over a President and don’t have to do anything different than they’ve done the last 8 years. Flooding the country with Democrats, the next move will be eliminate the electorate, and whallaaa… one party state forever with the left in charge. So, again, who’s going to stop them? No one, as we’ve seen year after year, even with a Republican President. Powerless, obviously over the left.

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