Feb 15, 2017
Judge Leonie Brinkema of the US District Court for Eastern Virginia is the latest federal judge to issue a temporary injunction against President Trump’s travel ban executive order. Judge Brinkema, who presided over the trial in which so-called 20th 9/11 hijacker Zacarias Moussaoui was convicted, acknowledged that the order reflects valid national security concerns, and that the president is allowed wide discretion in matters of both national security and foreign policy.
Her ruling found significant constitutional defects in the substance of the order, its implementation, and in the way it was defended by the administration. She also cited abundant statements by President Trump and key advisers in which they expressed an intention to impose what they called a “Muslim ban,” and alter immigration policy to favor Christian refugees from the Middle East. Both of those matters, Judge Brinkema contends, raise valid First Amendment and equal protection concerns.
As was the case with the recent ruling by the US Ninth Circuit Court of Appeals, Judge Brinkema underscored the fact that the Trump administration described presidential power over immigration as immune to judicial review – a position in conflict with a long line of judicial precedents and the text and structure of the Constitution. Although the president’s power in foreign policy is substantial, “Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights,” she wrote. In a 2001 ruling “the Supreme Court … made it clear that even in the context of immigration law, congressional and executive power `is subject to important constitutional limitations,’” she observed.
In dealing with court challenges to the executive order, the administration may have prevailed quite easily if it had presented a defense for the policy, rather than simply demanding deference to it.