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.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

Most Popular

White House

Another Warning Sign

The Mueller report is of course about Russian interference in the 2016 election and about the White House's interference in the resulting investigation. But I couldn’t help also reading the report as a window into the manner of administration that characterizes the Trump era, and therefore as another warning ... Read More
World

What’s So Great about Western Civilization

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Redacted: Harm to Ongoing Matter), One of the things I tell new parents is something that was told to me when my daughter still had that ... Read More
Film & TV

Jesus Is Not the Joker

Actors love to think they can play anything, but the job of any half-decent filmmaker is to tell them when they’re not right for a part. If the Rock wants to play Kurt Cobain, try to talk him out of it. Adam Sandler as King Lear is not a great match. And then there’s Joaquin Phoenix. He’s playing Jesus ... Read More
White House

The Mueller Report Should Shock Our Conscience

I've finished reading the entire Mueller report, and I must confess that even as a longtime, quite open critic of Donald Trump, I was surprised at the sheer scope, scale, and brazenness of the lies, falsehoods, and misdirections detailed by the Special Counsel's Office. We've become accustomed to Trump making up ... Read More
U.S.

Supreme Court Mulls Citizenship Question for Census

Washington -- The oral arguments the Supreme Court will hear on Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy ... Read More