U.S. judge who stayed President Trump's immigration order abused his judicial power: David Barnhizer (Opinion)



February 6, 2017

CLEVELAND -- I just read the ruling of U.S. District Judge James Robart blocking a sitting American president's ability to impose temporary rules limiting the entry of migrants seeking access to the United States so that the existing programs are properly evaluated and modified, as necessary, for reasons of national security.


Can you spell "forum shopping" for a favorable judge? Imagine the attorney general of the state of Washington being able to strategically pick a judge who allows his personal preferences to override his responsibility to respect the law and apply it properly rather than acting as an independent arbiter with the duty to respect and follow the law.


It was no accident that the case somehow ended up in the hands of this particular judge. Add to that the fact that the U.S. appellate court with authority over that particular federal district court is easily the most politically liberal in the U.S. federal judicial system.




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Robart's ruling reads as if he is writing as the plaintiffs' lawyer rather than an unbiased judge in a critical dispute. As I read his ruling, it struck me that Robart was advocating on behalf of the states and doing his best to finesse the very high standards for temporary restraining orders through the use of conclusions rather than honest analysis.


The standards Robart purported to be applying are high enough in ordinary cases. Given the fact that the issue at stake involved the scope of a president's national security and immigration powers, we should expect that only the most severe and egregious situations would ever be determined to limit the power of the executive branch in these special areas.


In looking at Robart's background, it leaps from the page that he is extremely sympathetic to special interest groups and refugees. Much of that concern is admirable and I share it -- but not when he allows his compassion and bias to intrude on his judicial decision-making rather than his personal preferences and conversations.


I cannot really imagine a judge on any level, not to mention a federal judge with lifetime tenure and enormous power, allowing his personal opinions and biases to cloud his judgment concerning appropriate judicial behavior. And, if the reports are accurate that he said "Black Lives Matter" from the bench following a case involving the Seattle Police Department, his behavior strongly suggests that he is not in full control of his emotions.


What Robart did is not balanced judicial reasoning. It is clear that he chose what he wanted to decide and then attempted to "reason backward" by a kind of judicial "reverse engineering" beginning with his conclusion, in an effort to justify that conclusion in ways that he hopes will insulate his ruling from appellate courts who apply weak standards on review that favor the decisions of their lower court judicial colleagues.


Robart's ruling, however, is little more than slightly veiled advocacy of his personal preferences, and that is not consistent with how a judge is supposed to act
He attempted to "reason backward" by a kind of judicial "reverse engineering" beginning with his conclusion.




His weak "findings" and flawed logic -- premised on harm to the states, universities, businesses and others -- would prevent any U.S. president from doing almost anything in the area of immigration, because not allowing illegal or undocumented people who sneaked across borders to work in the United States would cause harm to farmers and the construction industry. It would also reduce tax payments from those workers who had no right to be here in the first place, and create problems for colleges and universities who have increasingly depended on uncontrolled immigration for students.


Perhaps Mexico would have standing to sue in Robart's court under Robart's analysis. This is because loss of financial payments (remittances) sent back to Mexico by Mexican workers in the United States, whether here legally or illegally, would cause irreparable financial harm to Mexico because those payments are a very significant part of the Mexican economy.


These are the kinds of conclusions Robart reached in his order, a ruling that irresponsibly and illegally intruded on a president's powers to temporarily suspend immigration from dangerous zones where we have good reason to believe that groups such as the Islamic State are using the large-scale migrant surge to infiltrate jihadists into Western Europe and the United States under cover of asylum and immigration policies.


The fact is that what Trump did was not a "ban." It was a 90-day suspension and review (120 days for the Syrian "hot spot") of how we are handling people coming from dangerous territories.


The Islamic State (IS), al-Qaida, al-Qaida in the Arabian Peninsula and so forth have explicitly stated they are sending people into Western Europe and the United States under cover of refugee and migrant entry. Many border agents and U.S. Immigration and Customs Enforcement employees have questioned the prior administration's approach to immigration as being lax and politicized.


Intelligence agencies have stated concerns that IS has gained access to Syrian government passport machinery and identity files that allow the manufacturing of false but "perfect" passports from areas that make it difficult to "vet" the people using the fake documents.


Hearings have been held in Congress on these issues, and reports on these matters have come from CNN, the U.S. House of Representatives, The New York Times, Washington Post, Newsweek, the CIA and other U.S. intelligence sources.


For Robart to conclude that the Trump administration did not have an overriding national security duty to review entry processes and determine the best strategies for detecting jihadists and their supporters prior to their entering the United States is irresponsible at best, as well as biased and an abuse of his judicial power.


David Barnhizer is a Professor of Law Emeritus at Cleveland State University.


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