OK, the actual news headline is “Federal judge in Seattle blocks Trump’s travel ban” but that isn’t the point of the question.
Please make this nonpartisan.
What is the legal process (or precedent) by which a judge can block an executive order? Why do they have that authority? Can they be overruled by anything other than a higher court? Add your own questions here…
Judges definitely have the authority - they blocked Obama’s executive orders too.
The restraining order by the judge can prevent deportations. But I am very doubtful it can force the State Dept. to grant visas it was directed not to. And it definitely cannot bring in refugees that the government does not allow in.
I don’t see what the confusion is, if we leave out the merits of this particular case.
Of course a court can block an executive order. Imagine Trump orders all red cars seized immediately and donated to the Klan. I would think we could all imagine a Federal Judge issuing an order that prohibits implementation of that order. The authority is the United States Constitution. And, yes, those orders can be reviewed and upheld or overturned by a higher court, all the way to the U.S. Supreme Court.
The confusion is about the actual mechanism of the order. The order can prevent an action - like deportation. I don’t see how it can force an action like issuing a visa to a foreigner or deciding to bring in a refugee, except in individual cases.
But IANAL. Maybe Bricker or another board lawyer can come in and explain.
This is the essential answer to the OP’s question of how a judge can block an executive order. Ultimately, the president (and the executive branch) can only act within the authority granted by the Constitution. Similarly, Congress can only act according to the powers granted to it by article I of the Constitution.
Federal courts can determine that an executive action is contrary to the Constitution or to a federal statute. Those courts can also determine that Congress passed a statute that is unconstitutional, and strike down the statute.
Since this the GQ, the answer is that federal courts have the authority to do so under Article III of the Constitution.
There were some prominent cases a few years ago about County Clerks who refused to issue marriage licenses to gay couples, and the courts ordered them to issue the license. So it seems that a court can affirmatively order a government employee to do their job.
See the always-cool sounding writ of mandamus.
I don’t think the OP (or anyone else) is asserting that courts have the power to issue visas or bring in refugees. Courts certainly have the power to issue injunctions in some situations (e.g., when a federal law specifically provides that courts can order a party, typically a government agency, to do something). But that’s not what happened here – the federal judge in Seattle (Robart) only issued an oral temporary restraining order:
That does not mean he is issuing visas or making decisions on bringing in refugees, which would be outside his judicial authority.
Except in those cases there was a clear-cut eligibility for the license. In case of a visa or refugee admission, there isn’t.
If so, he’s not really “blocking” the executive order. That is, he is blocking marginal parts of it. But the bulk of it - no more visas from those countries, no more refugees for this long - is not blocked.
Huh, I thought they were still on the endangered species list?
It’s still unclear, as Judge Robart’s order was oral (the USAO is awaiting the written order that includes the reasoning). Nonetheless, Robart issued a temporary restraining order prohibiting federal employees from enforcing Trump’s executive order. From a legal standpoint, this means that CBP can’t use Trump’s executive order as a basis to prohibit travelers from the seven named countries who hold valid visas or who are permanent legal residents from legally entering the US. This doesn’t mean Robart is issuing visas or deciding who can enter as refugees, as you keep asserting for some reason.
As of tonight, pretty much the whole thing is blocked: https://www.justsecurity.org/wp-content/uploads/2017/02/Seattle-Court-Order-19717309322.pdf (PDF of Order).
Note: the current Ninth Circuit motions panel is two liberals and a conservative, so an emergency stay will probably not be granted if applied for.
CNN reports that CBP has said it will be “re-instating visas.”
When I first saw this story and where the judge presides there was a question that occurred to me. What if the first judge they go to doesn’t grant the injunction? Is there a double jeopardy to these things or can they just keep going to the next judge on the list until they get what they want?
Thanks – I had not seen that yet when I typed out my post. It does look a fairly exhaustive block (including sections 3 and 5).
I’m really having trouble understanding how this operates. Surely the executive branch has authority to issue a visa or not in any individual case, so how can the court just say “issue visas”. Issue visas to whom? Anyone who applies? People are denied visas all the time from all sorts of countries.
It means they issue visas as they normally would have without the executive order.
So people who had them revoked on the basis of the EO will have an argument to have them reinstated. And new applicants will be considered under the pre-EO rules.
Likely, people will have arguments in court about whether any denial going forward has a basis other than in the EO.
As I understand it, it’s re-instate the valid visas that were canceled.