Bench Memos

Law & the Courts

AG Sessions Resists the Resistance

The Supreme Court agreed yesterday to hear a challenge to the third iteration of the Trump administration’s travel ban. It had been struck down by lower courts—a Hawaii district court and affirming Ninth Circuit—that seemed to place their hostility to the president above the law, which grants the chief executive clear discretion on such matters relating to immigration and national security. Back in February 2017, after the Ninth Circuit struck down the first version of the travel ban, Eric Posner, a liberal critic of both President Trump and his policy, recognized that the courts may be creating a “‘Trump exception’ to settled law on presidential powers,” holding the current president to a different standard from that of his predecessors. He recognized this aberration from the law could come back to bite us.

One year later, it is clear that judicial resistance to this administration is alarmingly broad and almost entirely unmoored from the law. In an editorial this morning, the Wall Street Journal reports that “there have been 19 nationwide injunctions against Administration initiatives ranging from sanctuary cities to new rules on contraceptive coverage. Many of these rulings reject longstanding legal understandings or refer to Mr. Trump’s campaign statements rather than the language of the regulation.”

As a Senator and now as Attorney General, Jeff Sessions has been a fierce advocate for the rule of law and separation of powers, so it was not surprising that he directed his Justice Department to fight this new left-wing legal resistance. His office took the significant step of asking the Supreme Court to bypass the Ninth Circuit and overturn a pervasively political district court opinion that held untenably that Trump lacked authority to end the Deferred Action for Childhood Arrivals program, and the Court’s decision to grant could signal that a majority of the justices are sympathetic to his concerns.

It is highly disconcerting that so many judges have aligned with this new political “resistance,” allowing their personal views about President Trump to overcome their independence and threaten our Constitution’s separation of powers. Attorney General Sessions deserves kudos for recognizing that threat, and for directing an extraordinary team of lawyers to resist the resistance.

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