President Trump can’t seem to control his impulse to question his critics’ legitimacy.
.. Andrew Jackson reportedly said of the chief justice that “John Marshall has made his decision; now let him enforce it.” Jackson vetoed reauthorization of the Bank of the United States because he believed the Constitution did not give Congress the power to create a bank, despite the Supreme Court’s decision to the contrary in McCulloch v. Maryland (1819).
.. Franklin D. Roosevelt accused justices who struck down his New Deal of living in the “horse-and-buggy” era and acting “not as a judicial body, but as a policy-making body.”
.. But if presidential attacks on the courts are nothing new, the history also underscores the smallness of Mr. Trump’s vision. Jefferson, Lincoln and FDR knew when to speak and when to keep silent. They invoked the great powers of the presidency to oppose the Supreme Court only when fundamental constitutional questions were at stake: the punishment of political dissent; secession and slavery; Congress’s power to regulate the economy.
.. Mr. Trump is upset about losing a minor procedural test of a temporary executive order. If he doesn’t learn to be more judicious, we’re in for a long four years.
The Ninth Circuit Just Issued a Dangerous Ruling against Donald Trump’s Immigration Order
Critically, the Trump administration issued a significant executive order (and then defended it in court) without laying any real factual foundation for its finding. Next, the administration enforced the order in a haphazard and unnecessarily cruel manner, initially including even green-card holders in its scope.
By slamming the door (at least temporarily) in their faces, it created a crisis atmosphere that not only ramped up the political stakes, it told the court that the administration didn’t exactly know how to interpret its own order. This invites judicial meddling.
.. Second, the court held that it had the constitutional authority to review and determine the legality of the order. This is the least problematic aspect of the court’s ruling. I don’t agree with the administration’s assertion that it has “unreviewable authority
.. Fourth, the court cracked open Pandora’s Box — noting that it will likely consider Trump’s campaign statements in determining whether the executive order violated the Establishment Clause. While it didn’t rest its order on Trump’s repeated claims that he intended to implement a Muslim ban, it did say this:
Borders Reopen to Banned Visa Holders; Trump Attacks Judge
On another day of chaotic developments over the week-old order, the State Department reversed its cancellation of visas for people from the affected countries and began efforts to resettle refugees, small numbers of travelers began venturing to airports to try to fly to the United States, and Mr. Trump mounted a harsh personal attack on the judge.
.. Judge Robart, who was appointed by President George W. Bush, declared in his ruling that “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” from the affected countries, Iran, Syria, Iraq, Somalia, Yemen, Sudan and Libya.
.. The White House appeared determined to have Judge Robart’s ruling struck down swiftly. In his first statement on the matter on Friday evening, the press secretary, Sean Spicer, described the judge’s action as “outrageous.” Minutes later, the White House issued a new statement deleting the word outrageous.
.. It recalled the attacks he made during the presidential campaign on a federal district judge in California who was presiding over a class-action lawsuit involving Trump University.
.. Democrats said the president’s criticism of Judge Robart was a dangerous development. Senator Patrick J. Leahy of Vermont, a member of the Judiciary Committee, said in a statement that Mr. Trump seemed “intent on precipitating a constitutional crisis.” Gov. Jay Inslee of Washington, whose state filed the suit that led to the injunction, said the attack was “beneath the dignity” of the presidency and could “lead America to calamity.”
.. And in a third message, he asserted, without evidence, that some Middle Eastern countries supported the immigration order. “Interesting that certain Middle-Eastern countries agree with the ban,” he wrote. “They know that if certain people are allowed in it’s death & destruction!”
.. “The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax base.
.. The judge also barred the administration from enforcing its limits on accepting refugees, including “any action that prioritizes the refugee claims of certain religious minorities.”
.. The next question at the trial court level will be whether Judge Robart will make the temporary restraining order more permanent by issuing a preliminary injunction.