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A Conservative Judge Draws a Line in
the Sand With the Trump Administration
Outraged the attorney general had ignored
a court order, he authors a blistering
opinion rebuking William Barr for
overstepping his constitutional authority.
By KIMBERLY WEHLE
02/12/2020 11:40 AM EST
Twitter: Kim Wehle @kim_wehle
Facebook: Kim Wehle @kimwehle
Donald Trump has defanged Congress’ oversight authority. That became
clear when the Senate acquitted the president of obstruction. But one
conservative judge isn’t willing to let the executive branch steal
power from his branch of government.
In a jaw-dropping opinion
issued by the 7th U.S. Circuit Court of Appeals in Chicago on January
23, Judge Frank Easterbrook—a longtime speaker for the conservative
Federalist Society and someone whom the late Justice Antonin Scalia
favored to replace him on the U.S. Supreme Court—rebuked Attorney
General William Barr for declaring in a letter that the court’s
decision in an immigration case was “incorrect” and thus dispensable.
Barr’s letter was used as justification by the Board of Immigration
Appeals (the federal agency that applies immigration laws) to ignore
the court’s ruling not to deport a man who had applied for a visa to
remain in the country.
As Washington reels from the surprise
withdrawals of Roger Stone‘s prosecutors, apparently triggered by
Trump’sintervention in the upcoming sentencing of his long-time
adviser, the Easterbrook broadside offers another window into the way
the Trump administration is violating the division of power between the
executive and judicial branches.
The 7th Circuit case involved
an undocumented immigrant, Jorge Baez-Sanchez, who was subject to
removal from the United States after being convicted of a crime.
Baez-Sanchez applied for a special visa allowing him to remain in the
U.S. if he was also a victim of a crime. An immigration judge twice
granted Baez-Sanchez a waiver. But the Board of Immigration Appeals
reversed the immigration judge’s decision, claiming that only the
attorney general personally could grant waivers—not immigration judges.
Baez-Sanchez appealed to the 7th Circuit, which disagreed and remanded
the case with a directive that the Department of Homeland Security
comply with the immigration judge’s waiver. When it refused,
Easterbrook, a 35-year veteran of the court, had had enough of the
willful disregard for judicial authority.
“We have never before
encountered defiance of a remand order, and we hope never to see it
again,” Easterbrook wrote. “Members of the Board must count themselves
lucky that Baez-Sanchez has not asked us to hold them in contempt, with
all the consequences that possibility entails.”
record of defiance, Barr’s maneuver is predictable—but it is a shocking
break with more than 200 years of constitutional and legal precedent.
In 1803, the U.S. Supreme Court in Marbury v. Madison
established the bedrock principle that federal judges review the
constitutionality of actions by the other branches of government. With
few exceptions—such as Abraham Lincoln’s refusal to abide by Chief
Justice Roger B. Taney’s decision that Lincoln’s 1861 suspension of
habeas corpus was unconstitutional—presidents have adhered to Supreme
Court rulings. President Richard M. Nixon famously turned over the
Watergate tapes and effectively ended his presidency in dutiful
compliance with the Supreme Court’s ruling that he must adhere to a
subpoena for the tapes.
Presidents have used their powers to
shore up the authority of the federal courts, as well. President Dwight
D. Eisenhower deployed the National Guard to enforce the Supreme
Court’s call for racial integration in public schools under Brown v. Board of Education,
after the Arkansas governor’s refusal to integrate Little Rock’s
Central High School in the fall of 1957. A year later, in Cooper v. Aaron,
the court halted the Arkansas School Board’s ploy to suspend its
desegregation plan, noting that Marbury “declared the basic principle
that the federal judiciary is supreme in the exposition of the law of
In defying the 7th Circuit, therefore,
Attorney General Barr challenged the validity of Marbury v. Madison
itself—and thus the federal judiciary’s authority to say what the law
is and have it stick.
If Trump continues on the path of upending
the authority of federal courts (as can be expected), Easterbrook’s
contempt threat will necessarily become a reality. Federal judges will
have to use their contempt powers to protect the constitutional
prerogative of the judicial branch of government. But contempt against
the government can be tricky. A judge can impose a monetary fine, but
fines raise legal questions of sovereign immunity. A judge can
alternatively put someone in prison. But imprisonment raises the
question of who would go behind bars for defying a court order on
behalf of the president. In normal times, an order declaring that the
president’s staff is guilty of contempt could as a third option trigger
enough shame to prompt compliance. But with Trump in the White House,
we are not in normal times.
Hence, those who say “it could never
happen in America” need only consider Easterbrook’s holding, which is
so elementary that the very fact that he put it in writing underscores
how dangerous Barr’s defiance is: “The Attorney General, the Secretary,
and the Board ... are not free to disregard our mandate in the very
case making the decision.”
The question looming over the
presidency today is not what the law says, but what happens when the
executive branch violates established law. As we saw with the
impeachment debacle, without consequences, laws lose their force and
become optional. In remanding the Baez-Sanchez case for a second time,
Easterbrook insisted that the immigration judge’s waiver decision
remains “in force,” and that “[t]he Executive Branch must honor that
What will happen, then, on the inevitable day that
Trump’s administration refuses to honor a judicial decision? That
scenario beggars belief, too. Courts enforce contempt through the U.S.
Marshals Service, a team of federal police officers that is ultimately
within the president’s chain of command. Will U.S. Marshals side with
the judge over the president or vice versa? And if they get that choice
wrong, what branch of government stands ready to hold them accountable
to the people?
Trump and his ally in the Senate, Majority Leader
Mitch McConnell, are notably sanguine over the 187 appointments to the
federal bench—including two Supreme Court justices—that they have
managed to push through confirmation to date (four of them on the 7th
Circuit). The expectation, no doubt, is that Trump appointees will
uniformly implement a conservative agenda in lockstep with the whims
and desires of Trump and his loyal base. That might well be the case
when it comes to hot-button social issues like abortion and substantive
immigration law. But federal judges serve for life, and—unlike members
of Congress—do not have to worry about reelection. Easterbrook’s
decision suggests that when push comes to shove, even conservative
judges are unlikely to abdicate their Article III prerogative and
destroy what’s left of the separation of powers just because Trump
tells them to.