Today’s Argument over executive order on sanctuary cities Suggests Activism In Opposition to Bias and Insults
Today’s argument before the 4th Circuit U.S. Court of Appeals, over President Donald’s Trumps immigration executive order, suggests that some on the en banc court may be somewhat activist, not because they necessarily want to make new law, but rather in an attempt to counterbalance what they see as a clearly biased and bullying attempt to target Muslims, as well as an unconscious reaction to Trump’s strong criticism of both individual judges and the entire judicial system, suggests public interest law professor John Banzhaf.
Banzhaf not only predicted that courts would attack Trump’s first and second executive orders regarding immigration, but also his more recent executive order targeting sanctuary cities, and explained how the President’s lawyers might have sidestepped the major attack on his second immigration order: i.e., that it is anti-Muslim because it targets only Muslim countries.
Judges are usually accused of being activist when they are tempted to step outside their traditional roles and make law more like legislators, rather than simply interpreting existing law as it may be made necessary by new and perhaps unforeseen circumstances.
But in today’s argument – as in the earlier cases involving both immigrants and sanctuary cities – it may be that judges are simply trying to counterbalance what they see as overreaching and bullying actions, with perhaps some unconscious resentment over his arguably unfair attacks on judges, and their role under the Constitution of reigning in a president who may have exceeded his powers, argues Banzhaf.
This counterbalance type of activism appears most clearly in Judge William Orrick’s opinion.
Although he 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 be interpreted very broadly so as to unconstitutionally frighten many cities into providing the broad range of cooperation on immigration matters which Trump wants, which now appears to have happened.
The opinion also conveniently ignored two long established rules: “Ripeness,” which says that court should not decide important issues, especially constitutional issues, until the case has ripened to the point where it is clear what the order means, to which cities and actions it applies, what funds will be cut off, etc.; and “Exhaustion,” which dictates that if a plaintiff will be able to raise and have resolved issues in a hearing (e.g. to cut off specific funds to a specific city), the courts should await the outcome of the hearing.
In the several cases involving the immigration order, the courts likewise seem to disregard not only the rule which normally prohibits courts from second guessing presidential determinations involving immigration and national security – or requiring detailed justification for actions – but also well established rules regarding standing, says Banzhaf, who was involved in several important cases involving standing.
If judges see a president using his bully pulpit and executive order pen to literally bully cities with a meaningless order, or to hurriedly throw together an order seemingly to satisfy a campaign pledge and then bragging about it, a judge’s temptation to try to fight fire with fire is understandable, even if unjustified, claims Banzhaf.
One can only hope that the final resolution of these two issues by the U.S. Supreme Court will be principled, and with an eye towards the future implications of the rulings, says Banzhaf.