Writes Adam Liptak in the NYT, creating the impression that Judge Robart's decision simply represents a different tip in the balance between the value of immigration and the value of public safety. You know these judges, they're all about balancing, and a decision could go in either direction, depending on how the weights feel in the hand holding the scales of justice.
But Judge Robart took action and Judge Gorton refrained from taking action. It is Judge Robart who needs to identify a legal basis for interfering with another branch of government. How is it that Gorton gave us a 21-page opinion explaining the doing of nothing and Judge Robart interfered with the actions of the executive branch without putting legal reasons in writing?
I can see from the lawyers' brief — to which Liptak links in his search for a reason — that arguments were based on equal protection, due process, and the Establishment Clause. So which one was the basis for Robart's muscular exercise of judicial power?
For some reason, Liptak chose only to discuss the Establishment Clause. Does he think it's the strongest on the 3 arguments? I don't. Maybe he thinks it's best because it expresses the political debate around what many people are calling the "Muslim ban." Liptak quotes this from the plaintiffs' brief:
"President Trump and his advisers have made clear that the very purpose of this order is to tilt the scales in favor of Christian refugees at the expense of Muslims,” they wrote in their brief to Judge Robart.And Liptak quotes this response from Trump's lawyers:
“The more searching inquiry envisioned by the states would create substantial separation-of-powers problems, by permitting probing of the president’s subjective motive in issuing the order,” the brief said.Liptak questions this argument, made in the 9th Circuit by the plaintiffs' lawyer:
“The focus of our claim,” he said, “is on people who have been here and have, overnight, lost the right to travel, lost the right to visit their families, lost the right to go perform research, lost the right to go speak at conferences around the world. And also people who had lived here for a long time and happened to be overseas at the time of this order, which came with no warning whatsoever, and suddenly lost the right to return to the United States.”That's very well put as a policy argument, and I certainly think the President should be responsive to it. As a legal argument, it expresses ideas that would be best classified as due process. If this is the basis for the judge's decision, however, I would think that the remedy would need to focus on the legal residents who happened to be out of the country — not newcomers.
And that problem of the breadth of the judge's order is a standing problem. Standing doctrine not only requires that the plaintiff have a concrete and particularized injury caused by what the defendant is doing. The plaintiff can only demand a remedy that is designed to relieve that injury — not other injuries that may also exist.