The Trump Administration is revealing its strategy to contest the judicial orders that stay its immigration and refugee ban. No surprise there. What is surprising, however, is the argument that they make.
In sum, Trump’s lawyers argue that even if the Trump order violates individual rights, the courts have no power to review it. Why`Because national security concerns justify Trump taking EXCLUSIVE power in this area. Court interference would do “irreparable harm” to national security..
This is … shall we say … ominous. If the argument succeeds, we can expect a blizzard of Trump executive orders based on national security concerns. The courts will be neutered.
Is there any basis for it?
An interesting aspect of the argument is that one must accept it at “face value”. There is no evidence that the order is needed to protect national security, just Trump’s say so. As I said, this is ominous.
Robert-Loeb” an appellate attorney in private practice who for nearly 25 years handled high-profile appeals at DOJ under Republican and Democratic administrations, said claiming that court review itself amounted to “irreparable harm” was beyond the pale.
“I would have never put my name on a filing that said that,” Loeb tweeted<
One would hope that such an argument will be seen by the courts for what it is — a power grab.