In immigration law,
courts almost always abstain from overruling a president’s immigration orders.
The reason is that the executive branch—modeled after monarchs—is the
embodiment of sovereignty. One person ultimately decides who enters, and who is
removed: the president.
But starting in the
1970s, tiny fissures opened in this massive legal wall. Since then, it’s been
very hard for lawyers to get a court even to review an alien’s deportation
order. As courts put it, there is but a “crevice” of federal jurisdiction.
President Trump’s
naked bigotry has led to six courts widening this “crevice” of review.
Today, in Eblal
Zakzok v. Trump, the Fourth Circuit, in a 9-4 en banc ruling, upheld a lower
court’s injunction of President Trump’s third travel ban. Judge Gregory wrote: “Examining official
statements from President Trump and other executive branch officials, along
with the proclamation itself, we conclude that the proclamation is
unconstitutionally tainted with animus toward Islam.”
This is not the Ninth
Circuit, fabled for its liberal outlook. No. This court is located in the heart
of the old-Confederacy, where liberalism has not taken root—in Richmond,
Virginia.
Today, Trump is
crowing that the end is nigh for the DACA program. He is dead-wrong. That
program is being held open by a nationwide injunction. An interesting word on
that case: The court’s order technically applies to Secretary of Department Homeland
Security, Kirstjen M. Nielsen. The point is that the court has thought ahead to
likely noncompliance with its order. It cannot enforce an injunction against a
sitting president—but if Nielsen and her ICE police force violate the
injunction, they’ll be subject to contempt and jail—just like Sheriff Joe
Arpaio. Being about 40 years younger than Arpaio, she might not want to be a sacrificial
lamb quite like Arpaio, who, by the way, has a felony conviction record
notwithstanding his pardon.
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