In his March 26 Guest Opinion , Richard Harris chastised retired Chief Justice Jim Jones for his support of Judge Neil Gorsuch’s comment that judge-bashing tweets (even by a sitting president) were “disheartening” and “demoralizing.” Justice Jones added that such judge-bashing was harmful to our system of government.
Harris used the occasion to brand the federal district court and the 9th Circuit Court of Appeals as “extremely liberal” because they stayed President Donald Trump’s executive order barring some immigrants from entering the United States. Harris contends that “neither court’s decision mentioned either the statutory law or the Constitution.” That is simply not the case.
Even the most cursory reading of the 9th Circuit order would show that Harris is incorrect. The three issues addressed by the court in granting the emergency stay were all constitutional in nature. The court addressed each in detail. First, Trump argued that the state of Washington did not have “standing” to bring the case. The 9th Circuit, quoting Article 3, Section 2 of the Constitution, ruled that the state of Washington and its universities had suffered “particularized injury” traceable to the executive order and thus had standing to challenge it.
Next, Trump brazenly asserted that his order was “unreviewable” by a federal court, even if it violated constitutional rights and protections. The 9th Circuit panel reviewed 125 years of constitutional case law and concluded that Trump’s claim of non-reviewability runs “contrary to the fundamental structure of our constitutional democracy” and the role that courts play in that system. The political branches of government have no power “to switch the Constitution on or off at will.”
Trump finally argued that the people harmed by the executive order had no right to due process as guaranteed by the Fifth Amendment. The 9th Circuit held to the contrary that the order denied due process rights to various groups of people — lawful permanent residents, nonimmigrant visa holders, and refugees seeking asylum — by restricting their entry, travel or re-entry without the notice and hearing required by the Fifth Amendment.
Due to the tight time frame, the court did not rule on the state of Washington’s claim that the order violated the First Amendment (freedom of religion) by targeting Muslims for its ban. The court reserved action on that claim while stating that it raised “serious allegations” that “present significant constitutional questions.”
In short, there is no merit to Harris’ claim that “the panel completely ignored the federal statutory law and the Constitution, which is in keeping with the way the 9th Circuit does things.” The statement is flat-out wrong and the snide remark is precisely the sort of judge-bashing that Justice Jones finds detrimental to our system of government.
Jack McMahon is past president of the Idaho State Bar and presently is a lecturer at Concordia University School of Law.