Federal district judge James Robart of Seattle ordered a complete, nationwide temporary restraining order against President Trump’s temporary ban on visitors from seven Middle Eastern countries. If you read the ruling, as I have, you can see that this is clearly unconstitutional on its face, and constitutes a judicial coup against President Trump and the executive branch.
1) The standards for granting a temporary restraining order are quite high. The plaintiff must show that he is likely to succeed on the merits and will suffer irreparable harm if the injunction is not granted. Here the people from the excluded countries cannot show irreparable harm – only that their entry to the United States will be delayed. And they are unlikely to succeed on the merits, because the president has no obligation to let foreigners into the country. On the contrary, there may be irreparable harm if the temporary travel ban is lifted, as terrorists may enter the country and kill people.
2) By the way, the plaintiffs here aren’t even the people from the excluded countries. They are the states of Washington and Minnesota, who claim that their citizens will be harmed if the temporary ban is not lifted. Perhaps Microsoft is being deprived of some cheap labor. It’s a flimsy argument at best. This ruling has no substantial effect on states’ residents, contrary to what Judge Robart has said.
3) President Trump clearly has discretion to decide whom to admit to the United States and whom not to when it comes to admitting people who are not citizens. Foreigners do not enjoy the protection of our Constitution. The fact that a citizen may incidentally benefit from a foreigner coming to America doesn’t mean that that citizen has standing.
4) President Trump has the right to exclude people from a certain country, or even a certain religion. The Constitution does not prevent the government from discriminating on the basis of religion when admitting people to the country because, again, foreigners do not have any rights under our Constitution. President Trump could legally exclude all Muslims, or all women, or all gays, or any other group you care to think of, as long as they are not Americans.
5) In any event, it is clearly not a “Muslim ban,” because so many Muslim countries are excluded from it. If anything, it is a ban of Muslims from the most dangerous countries. This is not the same thing as a Muslim ban per se.
6) Presidents are traditionally given wide latitude by courts in matters of national security, and this is very much a matter of national security.
7) It is highly questionable whether federal district courts can issue nationwide injunctions. It is called a federal district court because the court’s authority is limited to a district. If it weren’t, there would be no need for circuit courts, and we would never see different federal circuits having slightly different laws. One district court could simply impose whatever it likes on the nation. It doesn’t work that way.
Judge Robart, who was appointed by George W. Bush (should we be surprised or not?), has clearly usurped his authority. The case clearly has no plaintiffs with standing or any kind of validity. At most, Judge Robart should have stayed his decision pending appeal to circuit courts. His radical injunction smacks of a judicial coup, of a single federal district judge asserting his authority over the entire executive branch. His arguments for doing so are unconstitutional, as is his manner of issuing the order. We are living in a time when judicial ayatollahs are usurping the power of our elected officials, and it is very much like a judicial coup.