Reaction to court block of travel ban considered disrespectful

May 3, 2017

By Mariya Zheleva
NNAF News Fellow | California State University

The moment it was signed, President Donald Trump’s executive order on immigration received reactions spanning every point on the political spectrum.

Fifteen states came together to defend Trump’s travel ban and its constitutionality against the judiciary’s block, but opposition of the block continues to ensue.

“I think it’s flawed, and I don’t think it really reflects American values,” Rep. Jim Costa, D-CA, said of the travel ban.

Hours before the revised travel ban was set to go into effect in mid-March, U.S. District Court Judge Derrick Watson in Hawaii blocked the ban by issuing a temporary restraining order after declaring it unconstitutional.

“The federal judge certainly was doing his job in determining, as we had in our government with checks and balances, whether or not laws that the Congress pass or executive orders that a president may issue, whether or not they comply with the Constitution of the United States of America,” Costa said.

“And I think, at least it came across anyway from the president’s reaction, as a rude awakening on his part that a federal judge could in fact determine whether or not an executive order is constitutional or not.”

Trump’s travel ban, having been blocked twice, once for the initial order and once for the revision, has led to responses made by the president that can only be described as unprecedented.

“There have been disagreements in the past between presidents and the courts as judicial action has been taken. That’s not new,” Costa said. “But the visceral reaction that our president demonstrated here in the last month is, I don’t think, respectful of the judiciary or our court system.”

Tony Mauro, a Supreme Court correspondent for the National Law Journal, echoed Costa’s thoughts on Trump’s reactions to the travel ban blocks, specifically in regards to the president’s tweet referring to Watson as a “so-called judge.”

“I think Trump overstepped. It’s not right for him to criticize judges,” Mauro said. “There’s a long tradition that you don’t criticize judges because of how their ruling came out.

“You might criticize them if they’re bad judges—they’re not articulate or something—but you don’t punish judges for their opinions, for their decisions.”

Mauro said that the courts have been constitutionally built to be independent from the two other branches of government. “It’s sort of built into their fiber that they feel that they are above the political fray,” he said. “It’s very important to them to show their independence—show that they don’t have to cater to the public’s whims.”

David Gans, director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center, said that the Supreme Court plays a key role in deciding or having the final word on the meaning of the Constitution.

“Trump’s comments about the judiciary certainly evince a measure of disrespect and failure to respect that the judiciary has a fundamental role in our system, which includes telling the president, ‘This is the line, and you can’t cross it,’ ” Gans explained.

With the ban initially barring travel from seven Muslim-majority countries, including Libya, Somalia, Iran, Yemen, Sudan and Syria, and then removing Iraq from the list in its revision, Gans said, there isn’t a national security concern with these countries.

“If you look on where there have been attacks on American soil, it’s not people from these countries,” Gans added.

Gans was one of the authors in the CAC’s amicus for Darweesh v. Trump that was written on behalf of 167 members of Congress.

“One of the things that our brief does that no other briefs do is kind of delve into some really important parts of the Constitution’s text and history,” Gans said, explaining that the brief focused primarily on the First Amendment and the religious test clause of the Constitution.

Gans explained that the brief specifically notes the First Amendment’s free exercise of religion and establishment clause, as well as the constitutional provision that bars religious tests from federal office.

“The orders, both the first one and the second one, were kind of designed to effectuate these promises that Trump made of having a Muslim ban,” Gans said.

“The first one flagrantly had provisions that actually seemingly required religious favoritism towards Christians, it seemed like they were setting up religious tests for immigration, which is really kind of a pretty flagrant violation of this kind of religious test idea that our brief talked about.”

Trevor Burrus, a research fellow for the Cato Institute’s Center for Constitutional Studies, said that he finds the ban to be unconscionable. “I am open borders—I want Ellis Island immigration,” he said.

Burrus also said that despite what he believes about the ban, it is constitutional because of the deference the executive branch has on national security and immigration issues.

He also added that the courts’ blocks on the travel ban had almost no legal reasoning.

“It basically seemed like the judges who issued them didn’t like the policy and therefore enjoined it, but that’s not the standard,” Burrus said.

“[N]evertheless, the courts’ orders that were enjoining them were also really, really bad from a legal standpoint.”
The 15-state coalition that filed an amicus brief defending the ban include North Dakota, South Dakota, Montana, Kansas, Florida, Louisiana, Alabama, Arkansas, Texas, Tennessee, West Virginia, South Carolina, Oklahoma, Mississippi and Arizona.

The attorneys general from these 15 states want to suspend the court’s decision until after the appeal, and then reverse the block on the travel ban.