Court of Appeals trumps Trump

by: in Law

When Trump tweeted "See you in Court, the security of our nation is at stake" he was absolutely right, but not as he intended it to mean. Because yes, courts are essential for the security of (the citizens of) the state.

On February 9, 2017 the (federal) Court of Appeals for de 9th Circuit, rejected the arguments of the US government that the suspension of the immigration order, barring refugees and citizens from seven states, should be lifted. And the Court furthermore, also unanimously, asserted the power of the courts to serve as a check on the powers of the President.

This decision is by no means a full decision on the merits and a final answer as to how and when and to what extent the President may indeed impose a valid immigration ban.The judgment however is a statement that in this domain the impugned executive order of the President can be challenged and reviewed by the courts, despite the President's claim that his reliance on state security should trump the issue and make the executive order immune for judicial review. For constitutional lawyers the decision in this respect is not really new as the doctrine of judicial review of presidential decisions has been well established. But it is good that the Court unanimously states the essence of its powers that is that the fundamental structure of the US constitutional democracy is bases upon the notion that the exercise of presidential powers may be reviewed by the courts.

The substance of the issue however is by no means over. The Court for instance explicitly says that even when the temporary restraining order that was imposed by the judge in first instance might be overbroad it is not the role of the Court to rephrase the Executive Order. The political branches are far beter equipped to make appropriate distinctions.

So what may happen now: an appeal to the US Supreme Court, as was hinted upon by the government. But it is by no means sure the Supreme Court will accept the case for review. It may and it may not. The president could also modify  his executive order and try to make nuances and distinctions that might survive court scrutiny. And then the courts will most likely again be asked to review such a new order. Will certainly be continued.

 Published on Law Blogs Maastricht

  • A.W. Heringa

    Author and editor of numerous books and articles on Dutch Constitutional law, the European Convention on Human Rights, the European Social Charter, comparative constitutional law, US constitutional law, Human Rights and legal education. Author of blogs on the Montesquieu Institute website.

    More articles from A.W. Heringa