This is a picture of Judge Robart, the Federal Court judge in Washington who has been written off by the President of the United States as a “so-called judge” (an accolade I never earned during 18 years on the Bench), and here is a tribute to this fine jurist in a newspaper published in Seattle. It will be noticed, among other things, that he not only acted as the chairman of a local home for disadvantaged children but he and his wife fostered six of them themselves.
This article gives a flavour of last Friday’s hearing, in which the State of Washington was represented by its Attorney-General, Bob Ferguson:
A key argument in Washington’s case against the travel ban is that it was motivated by bias. Ferguson’s complaint cited Trump’s campaign comments, including his December 2015 call for “a total and complete shutdown” of Muslims entering the country.
A video clip of the luckless attorney for the Government who told the judge that she did not believe she had to show that there was any rational basis for the presidential order has gone a bit viral.
What, then, is a presidential executive order? And what is a federal district court and its role in the matter?
The US Constitution does not refer explicitly to any power to make executive orders. However, Article II of the Constitution , which is concerned with executive power, refers to the office of the President as the executive, and it is instructed, on pain of impeachment, to “take care that the Laws be faithfully executed”. Most Presidential executive orders rely on these provisions as the basis for their authority, and they must also find other support in the Constitution, whether in a clause which grants the President a specific power or where there has been a delegation of power to the President by Congress.
Thus the recent controversial order on immigration begins:
By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:
If this order is to be challenged in the courts as having been made outwith the President’s constitutional power, the appropriate forum is one of the federal district courts. [Local state courts are only concerned, on the other hand with the interpretation of the constitution of the state in which they are located).
Federal court judges are appointed for life, and their appointment needs to be confirmed by the Senate before it takes effect. Judge Robart himself was nominated in 2003 by President George W. Bush, and his appointment was confirmed by the Senate the following year by a 99-0 majority.
The issue before him, therefore, was whether President Trump had the constitutional power to make the order under challenge, and as I said in my last blog, he was satisfied on the arguments he heard during a brief hearing that it was likely that the challenge would succeed at a full trial.
Most orders of a federal district court have effect only within the state in which the court is situated. On this occasion two different states (Washington and Minnesota) challenged the legality of the ban, and the judge decided, as happens on rare occasions, that it was appropriate for him to exercise the power he undoubtedly possesses to make the ban nationwide.
A similar order was made two years ago by a federal district court in Texas, which temporarily enjoined the Obama administration from proceeding with a new policy which allowed certain aliens to apply for “deferred action” for Parents of Americans and Lawful Permanent Residents (“DAPA”). “Deferred action” is a form of prosecutorial discretion under which aliens are not removed from the United States and which authorises them to seek permission to work lawfully in the United States.
That order was upheld by a 2-1 majority by the Fifth Circuit Court of Appeals later that year, and in June last year, with the vacancy created by Justice Scalia’s death still unfilled, the US Supreme Court split 4-4, with the result that the lower court’s decision was not overturned and the ban remained in place.
In cases of this kind a Federal District Court will usually consider any ruling made on the same issue by a district court in a different state, but it will not be obliged to follow it. If a nationwide order is granted against the US Government in one district court, the Government is obliged to follow it even if similar relief has been refused elsewhere. The Government’s remedy is to appeal to the Court of Appeals of the relevant circuit, and if it fails there, to the US Supreme Court, as happened in the DAPA case.
On very rare occasions, once an appeal has been filed in the appropriate Circuit Court of Appeals, any party may petition the US Supreme Court for an order of certiorari, which would enable that court to take up the case immediately if it wished to do so.
The power of a federal district court to make nationwide orders, which enables a challenger to go forum-shopping for what it considers an appropriate venue (Texas in 2015, Washington and Massachusetts in 2017), is not without its critics, as this interesting article makes clear.
In this blog I have also tried to answer queries made by some of the 320 people who have so far viewed its predecessor, and while not holding myself out as any sort of expert on US law and procedure (or, indeed, of up to date English law and procedure) I will continue to do my best to answer any questions I feel competent to try to respond to.
Henry Brooke 