A federal judge in Hawaii has termporarily enjoined the President’s latest travel ban order, finding that it was inconsistent with federal immigration law,. even though non-Muslim countries were now included, and the explanations offered were more extensive and based on considerably more study than the two earlier.
Many law professors and other independent legal observers had concluded that any such challenge would likely fail, unless the courts applied what is increasingly being characterozed as “Trumplaw” – a legal analysis unique to the actions of this president alone, and designed to oppose and frustrate his efforts, even if it requires bending or stretching established legal principles, says public interest law professoR John Banzhaf who explains the new phenomina this way.
These are not ordinary circumstances, he says, citing a newly recognized phenomena under which at least some judges seem willing to take any action deemed necessary to thwart what they may see as improper decisons by the President, regardless of what existing law provides.
Several scholars, including some who oppose him, suggested that courts appear to be adopting a new jurisprudence called "Trumplaw" aimed uniquely at this President; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones.
For example, a piece in the New York Times described this new method of deciding cases as "a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves."
While hardly in favor of the President's so-called Muslim bans, the Times piece is nevertheless worried about the various court decisions, staying they establish "a precedent that would further politicize an already-partisan judiciary, by licensing judges to constantly look beyond the law for excuses to rule against politicians (liberal or conservative) they dislike."
Moreover, suggests the Times piece, such rulings - e.g., illegitimizing the immigration order as unconstitutional religious discrimination - could hobble efforts to protect against a "Manchester-type terrorist attack (or something even worse)" because "the most important terror threats are Islamist, and any move to safeguard Americans is likely to have a disproportionate effect on Muslims," and thus courts are "automatically going to rule against Trump on any counterterrorism issue that touches on Islam."
David French of the National Review, who has been described as a NeverTrumper, nevertheless warns about this "strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump."
In his words, "when existing precedent either doesn't apply or cuts against the overriding demand to stop Trump, then it's up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the 'right' result'" - "an otherwise lawful order is unlawful only because Donald Trump issued it. . . . All this adds up to Trumplaw, the assertion by the federal judiciary of the legal authority to stop Trump."
Law Professor Paul Horwitz, who supports some of TrumpLaw to achieve a desired result, and says he could be persuaded to support all of it, defines it as "about lower courts developing a form of what some critics call 'TrumpLaw,' law responding to and designed especially for the Trump administration" and "may be seen as a radical departure from existing law and in effect a lawless set of actions."
He writes that in some instances "it constitutes utter resistance to the Trump administration and its policies," although "one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se."
Attorney Scott Greenfield, writing on his blog, argues regarding TrumpLaw that: "the exercise of authority going forward will be subject to judicial approval of the president's 'bona fide' intent behind facially constitutional exercises of authority. Every act, every burp, despite its being completely within a president's power, will be subject to a judge's post hoc approval of her underlying intentions. All one would need to stop the president from doing her job is a district court judge who finds her secret, hidden purposes improper. And by improper, it means different than the judge's sensibilities."
Law Professor Todd Henderson sums it up simply: "This is @realDonaldTrump-specific law, which is lawless."
Courts have refused to uphold Trump's second so-called Muslim ban order on grounds that many law professors, some of whom strongly oppose the order, nevertheless have suggested seem to be contrived: e.g., because of his prior statements allegedly evidencing racial bias.
Another recent example of what could be called Trumplaw - bending the law to oppose Trump's actions - relates to his order regarding so-called sanctuary cities, suggests Banzhaf.
Although the judge agreed with the government that the sanctuary cities executive order was on its face "toothless" since it neither required cities to honor ICE detainer requests nor to provide the government with information about people's immigration status, that it "did not change existing law" at all, "carries no legal force," and was "merely an exercise of the President's 'bully pulpit,'" he nevertheless stayed it because it could possibly be interpreted so broadly as to unconstitutionally frighten many cities into providing the broad range of cooperation on immigration matters which Trump wants.
In short, many judges, in addition to wanting to oppose much of what Trump does because they strongly object to him and his orders, may also be willing to bend and stretch the law because Trump has repeatedly attacked judges, by name as well as collectively.
It is likely that other judges strongly resent such attacks, both openly and perhaps even subconsciously, because no judge is ethically permitted to speak out and defend his own actions from attack, but also because an attack on several named judges is likely to be seen as an attack on all of them.
Since this latest temporary njunction is based largely upon the earlier ruling of the Court of Appeals, it is quite possible that this third presidential travel ban may not go into effect until the U.S. Supreme Court acts, says Banzhaf.