Last week, the Trump administration got a pointed lecture about the separation of powers and a reminder of what conservative jurisprudence actually looks like. Apparently, the president is none too happy about it, which suggests he understands neither the constitutional principle nor the role of conservative judges.
That’s worth bearing in mind as we head into a summer that could test the integrity of the rule of law and the institutions that ought to protect it.
Most of the attention last week understandably focused on Trump’s pique over Justice Neil Gorsuch’s decision to side with liberal justices on a case involving the government’s power to deport aliens. But the 7th Circuit’s rebuke of Trump’s attempts to cut off funds to “sanctuary cities” was an even more stinging critique of the administration, especially since the withering criticism of the president’s policies and Attorney General Jeff Sessions came from the panel of judges who had all been appointed by Republican presidents.
The main opinion was written by Judge Ilana Rovner, who was appointed to the federal bench by Ronald Reagan and promoted to the appeals court by George H.W. Bush. Her opinion was joined by Judge William Bauer, who was appointed by Gerald Ford. Judge Daniel Manion, also appointed by Reagan, concurred. The decision upheld an injunction that had been issued by another Reagan appointee, District Judge Harry Leinenweber. (Full disclosure: My former wife sits on the 7th Circuit, but did not participate in this case.)
The appeals court decision is well worth reading, especially for those who need to be reminded that conservative judges do not always mean victories for conservative policies. Indeed, the decision is an extraordinary reaffirmation of the judiciary’s role as a check on constitutional abuses and a full-throated denunciation of what it sees as Trump’s attempts to usurp the prerogatives of Congress.
Judge Rovner’s decision begins by emphasizing that the judges’ role was “not to assess the optimal immigration policies for our country.” Rather, the court ruled, “the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.”
What follows is the legal equivalent of a beating about the ears for the administration; beginning with the stern lecture about the importance of the constitution’s restraint on excessive executive power, using the word “tyranny” twice in the same paragraph.
In this case, the judges wrote, Sessions “used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” But, they reminded Trump, “the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds.”
To the contrary, they wrote, “Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor . . . did Congress authorize the Attorney General to impose such conditions.”
Since the Trump administration has trespassed upon Congress’s powers, the 7th Circuit judges declared: “It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.”
The judges saved some of their harshest language for Sessions.
This judicial smackdown was overshadowed by Justice Gorsuch’s vote in Dimaya, which struck down a rule that allowed the deportation of immigrants convicted of certain crimes. The Washington Post reported that Trump subsequently complained that Gorsuch has become too “liberal”:
But here again, Trump seems not to understand what it means to be a “reliably conservative” judge. As John-Michael Seibler of the Heritage Foundation notes, Gorsuch’s decision was very much in the tradition of Antonin Scalia’s jurisprudence. Gorsuch’s desire to limit government power was, he writes, “a fundamentally conservative one: hostility to vague laws and arbitrary power.”
Under the Constitution, Gorsuch wrote, only Congress can write laws, but if those laws are too vague, it “can invite the exercise of arbitrary power . . . by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.”
As some conservatives have recognized, this principle could extend far beyond immigration policy. Indeed, George Will notes, Gorsuch’s position “is a scythe sharp enough to slice through many practices of the administrative state, which translates often vague congressional sentiments into binding rules, a practice indistinguishable from legislating.”
It’s both ironic and worrisome that a president whose sole qualification in the eyes of many conservative voters was his willingness to appoint conservative judges turns out not to really like judicial conservatism.
