THE BLOG
01/31/2017 03:10 pm ET Updated Feb 01, 2018

Any Fool Can Sue

As much as I support the sentiments of the ACLU and others, and the momentary victories to convince federal judges to temporarily stay parts of President Trump's executive order banning immigration from some Muslim countries, I don't think it will stand.

Indeed, there could be unintended consequences that do more harm than good.

These cases, instead of reigning in executive power, are more likely to lead to rulings that set another precedent for judicial deference to presidential authority on immigration and foreign policy, in this one even when he is stupid, mean-spirited and xenophobic.

Even the apparent wins for the challenges thus far simply postponed rulings on the merits.

Precedent is not on the side of the challengers.

With slavery, Japanese detainment camps, Chinese exclusion acts, and the like, our federal courts tend to defer, not rebuke or repeal the decisions of the other branches. Exceptions are rare, and I don't see this case becoming one of those.

Besides the chance for unintended consequences, my other concern is that if Trump ultimately wins these cases it will give the impression that the courts support his policy (he will certainly claim that), when the only issue before them was his legal authority.

This thing ought to be dealt with in the political world where the policy itself can be thrashed out, and the public engaged. Stopping Trump's excesses will be the job of Congress, and ultimately the American people who disapprove of his actions and pressure their elected officials.

This is an epic moment went it comes to foreign policy blunders, but I don't see a legal case. It should be fought in the political word, not the courts.

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