February 4, 2017


Why Judge Robart Blocked the Muslim Ban: There's No Legal Way to Implement an Illegal Order (Mark Joseph Stern, 2/04/17, Slate)

In his time on the bench, Robart has demonstrated a deep commitment to facts--the real ones, not the alternative ones--and the impact of the law on actual lives. A George W. Bush appointee, his jurisprudence shows no obvious partisanship, and his evenhanded courtroom demeanor suggests a commitment to fairness and impartiality. [...]

His questioning was calm but vigorous and persistent. He asked Washington State Solicitor General Noah Purcell how the executive order could discriminate against Muslims when, on its face, it makes no mention of a particular religion. But he also asked Justice Department attorney Michelle Bennett how the order was rationally related to its stated goals. How many citizens of the seven Muslim-majority countries targeted by the ban, he asked Bennett, had been arrested on domestic terrorism charges since 9/11? She said she didn't know--but he did. The answer, he said, was zero.

"You're here arguing on behalf of someone who says we have to protect the U.S. from these individuals coming from these countries," Robert said, "and there's no support for that."

When Robart issued his ruling, he took care to reiterate his commitment to both judicial restraint and independence. "Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government," he wrote.

The work of the court is not to create policy or judge the Wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country's laws, and more importantly, our Constitution. ...
[T]he court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country's citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.

Robart's order did not elaborate extensively on the ban's constitutional infirmities. But in ruling for Washington--and in blocking the entirety of the ban--he appeared to agree with the state's claim that Trump's executive order cannot be carried out in a constitutional manner. 

Posted by at February 4, 2017 5:53 PM