Even Without Trumplaw, Judges Under Trumplaw Likely to Block His Efforts involving southern border actions
WASHINGTON, D.C. (December 29, 2018) – In addition to the dire economic consequences which many predict would occur if President Donald Trump attempted to carry out his treat to “close the southern border entirely,” there are also major legal impediments likely to stop him, especially if some judges continue to employ a “Trumplaw” judicial philosophy, says public interest law professor John Banzhaf, who correctly predicted court rulings on many prior Trump initiatives, including the so-called Muslim ban.
Here’s why the President can’t lawfully “close the Southern Border entirely.”
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Citizens of the United States, whether they were born in the U.S. or have been naturalized, have an absolute legal right - in the absence of something like a medical quarantine - to enter the U.S., including via the southern border. Thus any attempt to block a documented U.S. citizen from entering the U.S. from Mexico would be met with an immediate legal challenge - possibly by an action in the nature of habeas corpus - which would likely be successful.
While the President's so-called Muslim ban, limiting entry to non-citizens on security grounds, was ultimately upheld by the U.S. Supreme Court, as Prof Banzhaf had publicly predicted, it was held up for many months by several different judges who issued orders enjoining it from being put into effect on a variety of grounds.
This is very likely to happen again, says Banzhaf, because the law still permits those who oppose a president's policies to forum shop to find a judge and a federal circuit most likely to be sympathetic to their legal position - and this time it would be even harder to claim that this precipitous action was required for reasons of national security
Once that happens, virtually any single judge in the U.S. can then issue an injunction stopping any new southern border crossing policy from going into effect. Once such an injunction is issued by even one judge, the border could not be entirely closed, even if many other judges upheld the policy and/or refused to order injunctive relief.
This problem - that any one federal judge, carefully selected for his judicial philosophy and leanings, can block any new governmental policy regardless of how other district judges might rule, and that such national injunctions can often remain in effect for a considerable period of time - means that an order arguable resting on the same basis as the so-called Muslim ban to close the southern border even to non-citizens probably would be stayed at least until well after the current standoff ended.
Also, if Trump tried to put more restrictions on refugees crossing the southern border to seek asylum, his efforts would almost certainly be blocked by one or more federal judges. Indeed, his prior efforts to restrict immigrants at the border from requesting asylum has already been struck down by a federal judge.
Even if Trump's threat to close the southern border applied only to trade, portions of the North American Free Trade Agreement [NAFTA] would probably limit him.
All of these problems would exist even if all the judges involved scrupulously and impartial applied existing law.
But many observers, including the voices of some who largely oppose Trump and his policies, have suggested that - especially with regard to border crossing issues - judges are willing to bend if not break the law to stop Trump; a judicial philosophy which has been called applying Trumplaw.
For example, 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."
David French of the National Review, who has been described as a NeverTrumper, nevertheless warned 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."
Law Professor Paul Horwitz, who supports some of TrumpLaw to achieve a desired result, 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."
Attorney Scott Greenfield 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."
In sum, says Banzhaf, whatever political advantage Trump might seek to gain in the current impasse by threatening to "close the Southern Border entirely," he is unlikely to be able to actually do so.
The ability of opponents to forum shop to find federal judges least sympathetic to Trump, and willing to issue national injunctions against his new policy initiatives, especially if the judges are motivated by Trumplaw, likely dooms his latest threat on strictly legal grounds, in addition to whatever political and economic consequences it could trigger, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf