Back in early December, the US Supreme Court vacated various decisions issued in opposition to the executive order President Trump issued that imposed “severe vetting” on travelers from terrorist and failed states. A 7-2 ruling vaporized a compromise deal that had been worked out, let the government fully enforce the travel executive order, and told the two federal circuits still examining the case to get on with it:
Today the justices agreed to the federal government’s request. In two brief orders (available here and here), the court permitted the Trump administration to enforce the September 24 order while the courts of appeals consider the government’s appeals and, if necessary, during review in the Supreme Court. In doing so, the justices went further than they had in June, when they carved out the same kind of exception to the March 6 order that the lower courts imposed in this case – for travelers who can claim a relationship with the United States. In its most recent filings, the Trump administration had argued that the September 24 order is different from its predecessors not only because of the “extensive worldwide review process” that led to its creation, but also because it applies to countries where Muslims are not a majority, while removing some majority-Muslim countries from earlier lists. Although the challenges are still in a preliminary stage of litigation, today’s orders nonetheless bode well for the Trump administration by suggesting that its arguments may have gained some traction on the court.
The 9th Circuit is scheduled to hear oral argument on Wednesday, with oral argument to follow in the 4th Circuit on Friday. In a sentence that seemed to express a warning rather than simply optimism, the justices observed that, because each court had agreed to expedite the government’s appeal, “we expect that the Court of Appeals will render its decision with appropriate dispatch.”
Yesterday, the Ninth Circuit ruled the new procedure was still illegal but didn’t attempt to issue an injunction because the 7-2 ruling basically said the Supreme Court thought the government would prevail.
Astonishingly, the Supreme Court’s sort of explicit guidance was not good enough for everyone:
A federal judge in Seattle on Saturday partially lifted a Trump administration ban on certain refugees after two groups argued that the policy prevented people from some mostly Muslim countries from reuniting with family living legally in the United States.
U.S. District Judge James Robart heard arguments Thursday in lawsuits from the American Civil Liberties Union and Jewish Family Service, which say the ban causes irreparable harm and puts some people at risk. Government lawyers argued that the ban is needed to protect national security.
Robart ordered the federal government to process certain refugee applications but said his directive did not apply to people without a “bona fide relationship” to a person or entity in the United States.
The name “Robart” may be familiar to some of you. That’s because this is the same judge who was first to rule the initial travel ban was illegal.
I expect the government will be back in court on Monday to fight this. I expect this order by Robart won’t last very long. But it is drawing welcome attention to a larger problem. At some point the Congress has to start impeaching judges if it doesn’t want the Executive and Legislative branches rendered superfluous. While it is often implied that a judge has to commit an actual crime, like Representative Alcee Hastings did when he was a federal judge, in order to be impeached. That isn’t what the Constitution says. It sets the standard as “during good behavior.” Clearly, acting in defiance of the Supreme Court and acting to impose the judge’s own desires upon the law does not constitute “good behavior.” The Senate doesn’t even have to act. The House can vote articles of impeachment and make life very, very unpleasant and expensive for a federal judge who’s made defying the law a lifestyle choice.