We now have a better picture of his view of the judicial branch. Trump may be outraged that two federal courts can stay his immigration ban, causing him to retaliate with tweets that engage in the worst kind of disrespect and name-calling. After such a botched rollout of the immigration ban, he has learned in theory that any executive order should be extremely vetted with the departments they fall to and with members of Congress as well. Staff at the Department of Homeland Security, faced with immediate and unplanned implementation of the ban, found itself relieved days later when the ban was stayed. The Acting Attorney General, a career diplomat, was fired by the president for telling members of the Justice Department that she felt the ban was unenforceable.
The Justice Department (with its new Attorney General confirmed only after these two federal court appeals had been heard) was charged with defending the immigration ban in those courts. Part of the argument they made is that presidential executive orders are “unreviewable” by the courts. The 9th District Court of Appeals, in concurring with the Washington State Solicitor General who argued the plaintiff’s case, said of the matter:
“Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress a the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will” [r]esolution ). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel.Zivotofsky v. Clinton.566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.”