JURIST Guest Columnist Victor Williams discusses separation of powers between the Executive and Judicial branches, and how this relates to the travel restrictions imposed by Donald Trump…

Among President Donald Trump’s fundamental constitutional duties are implementing war strategy as Commander-in-Chief and developing security-related foreign policy as Chief Executive. The president has inherent and exclusive Article II authorities in this area.

The Ninth Circuit panel’s ruling in Washington v. Trump, affirming District Judge Robart’s TRO suspension of the travel ban, was a shocking usurpation of those Executive powers.
Or to make this argument re-tweetable:

USA at war. Extreme vetting of aliens not on American soil, not the judiciary’s &#$% business!!! SEE YOU COURT!!

Other important court challenges against the January 27th executive order continue to develop in New York and Virginia. And new lawsuits should be expected after President Trump issues his “streamlined” Travel Ban 2.0.

The month-old Trump administration is to be commended for its strategic defense against the multi-front legal assault. Donald Trump must fight and win these skirmishes for the sake of the war on terror, and for his broader disruptive agenda to put America first.

Now that Attorney General Jeff Sessions is finally on the job, Trump can hope for much better representation than he received from DOJ’s publically-insubordinate Sally Yates or the sincere but less-than-zealous August Flentje.

Trump’s lawyers must destroy the challengers’ purported standing while demanding the federal judiciary’s recognition of the president’s broad statutory authority under 8 USC 1182(f). (Neither the Ninth Circuit panel nor Judge Robart analyzed, or even so much as cited the controlling statute.) Congress has explicitly delegated its Article I authority over these immigration matters to the Executive.

But it is not enough for DOJ to assert substantial statutory authority over immigration. Donald Trump must forcefully, if alternatively, argue that challenges to the travel restrictions present a nonjusticiable political question.

Our judiciary is being drawn into the densest of modern “political thickets.” The courts must be persuaded to voluntarily withdraw from reviewing the challenges and immediately exit the escalating, post-election fight between ideological elites and Donald Trump.

At issue is nothing less than the separation of powers and basic principles of government by consent. The judiciary’s full accession to abstention in these matters is imperative for its own continued credibility. Consider a terrorist attack causally connected to the judicial interference.

The Constitution textually grants the president the exclusive responsibility to implement war strategy and foreign policy to defeat America’s foreign enemies. Only the president has the institutional competence to know what specific actions are required to fulfill that responsibility. And foreign-soil aliens have no standing to raise constitutional liberties that allegedly might conflict. It is a classic political question.

Throughout our Republic’s history, the Supreme Court has recognized that some issues are committed by the Constitution’s text to the exclusive discretion of the elected political branches. When these political questions manifest, the judiciary must keep out of any dispute.

Congressman John Marshall, in 1800, warned his US House colleagues that the political branches would be “swallowed-up by the judiciary” without such abstention.

And as Chief Justice, Marshall provided early nonjusticiability guidance in Marbury v. Madison: “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”

Much later, Associate Justice Robert Jackson recognized that foreign policy decisions “are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.” In Chicago & Southern Airlines v. Waterman, Jackson further emphasized that such “decisions are of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”

More recently in her 2015 Zivotofsky v. Clinton [PDF] concurrence, Associate Justice Sonia Sotomayor stressed the importance of abstention to honor the separation of powers. As she had done when Zivotofsky was first before the Court, Sotomayor reiterated the modern political question doctrine as developed in such cases as Baker v. Carr, Goldwater v. Carter, and Nixon v. US.

And in Zivotofsky dissent that urged abstention, Associate Justice Steve Breyer detailed in full how judicial review in the foreign policy context can pose a “serious risk” of “embarrassment, show lack of respect for the other branches, and potentially disrupt sound foreign policy decision making.”

Breyer particularly urged application of political question doctrine in matters involving a situs of global political chaos: “[I]n the Middle East, administrative matters can have implications that extend far beyond the purely administrative. Political reactions in that region can prove uncertain.”

Perhaps the Court’s earlier application of the doctrine in Goldwater v. Carter best informs. The Court rejected review of a congressional delegation’s challenge to President Jimmy Carter’s foreign policy decision to terminate a defense treaty with Taiwan—without acquiescence of the House and/or the Senate.

Then-Associate Justice William Rehnquist wrote: “Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty.”

The Constitution is dead silent as to any support for Washington State’s absurd standing claim of concrete injury when its businesses are denied tourism revenues, and its universities are denied faculty services and student tuition dollars of visiting aliens from terrorist-breeding nations.

The Ninth Circuit panel’s promulgation of Washington State’s interest to “assert the rights” of alien students, faculty, and even their holidaying families to enter, leave, and re-enter America would be laughable if it were not so dangerous. And the implication of prospective due process rights for all such aliens is ludicrous.

Beyond applying the Baker v. Carr enumerated formula, Trump’s lawyers should also boldly raise the less “domesticated” judicial abstention promoted by the late Alexander Bickel. In this time of an unusual war with terrorists, prudence should compel courts to abstain where the strangeness, intractability, and/or momentous nature of an issue might tend to “unbalance judicial judgment.”

Disturbingly prescient, Alexander Bickel addressed “the anxiety, not so much that the judicial judgment will be ignored but that it should but will not be.“

Professor Bickel described “the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from.”

Today our unelected judiciary, which has “no earth to draw strength from,” should stay out of the worsening mud-fight between the ideological elites and Donald John Trump.

Lastly, it should be noted that “finality” is one the political question doctrine’s greatest virtues.

As Trump derangement syndrome appears virulently contagious among the elites — particularly among lawyers who need only the federal court filing fee to make manifest their disorder — finality is needed to retard future litigation against Donald Trump’s governance.

Victor Williams is a longtime Washington, D.C. attorney and law professor who has supported the constitutional discretion of the past four presidents. During the 2016 campaign Williams chaired “Lawyers and Law Professors for Trump” which is now being rebranded as an advocacy platform “America First Lawyers Association.” He recently lodged an amicus curiae brief in the Ninth Circuit case raising the political question nonjusticiability issue.

Suggested citation: Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST – Forum, Feb.15, 2017, http://jurist.org/forum/2017/02/Victor-Williams-travel-ban.php