On Friday, U.S. District Judge James Robart blocked significant portions of Donald Trump’s immigration executive order, a document that had been drafted with all the care of a seven-layer dip and rolled out with virtually no intra-agency coordination. After Robart’s ruling, the Department of Homeland Security stood down, halting efforts to turn away green-card and visa holders from seven Muslim-majority countries. As formerly banned travelers began to arrive, Trump had a Twitter tantrum. His first tweet was ominous: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” The rhetoric quickly escalated to what looked like threats against the judge himself: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
What was Trump’s end game here? Initially, it seemed his tweets were an impetuous aberration that his allies would work to clean up. On the Sunday shows, some Republicans distanced themselves from Trump’s effort. Vice President Mike Pence, for one, asserted that a judge “certainly” has the right to halt Trump’s executive order. Even Senate Majority Leader Mitch McConnell said that “it’s best to avoid criticizing judges individually.”
But not everyone agreed that there is something inherently wrong with running down judges who disagree with your constitutional views. On the Fox Business Network on Monday, Mike Huckabee used Robart’s decision to promote his own vision of checks and balances—to wit, that there are none, at least not when a Republican occupies the Oval Office.* As Huckabee put it, “I think we have an executive branch that has emasculated itself by surrendering constantly to the idea that once the court says something, that’s it. It’s the law of the land, and when I hear that phrase, it’s the law of the land ’cause the court said it, I think, Did you guys pass ninth-grade civics for gosh sake? The court can’t make law. They cannot legislate.”
What the hell is Huckabee talking about? Marbury v. Madison, in which the Supreme Court established judicial review, is more than two centuries old. “It is emphatically the province and duty of the Judicial Department to say what the law is,” the court said then. Conservatives certainly heeded Marbury’s command when President Barack Obama was in office. Remember a few short years ago, when the U.S. Court of Appeals for the 5th Circuit determined that President Obama’s immigration executive order violated the Constitution. Back then, Judge Jerry Smith asked Justice Department lawyers whether the DOJ agreed that the judicial branch could indeed strike down an unconstitutional law. Smith went on to demand that the DOJ turn in an extra homework assignment addressing the question of “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review in regard to the recent statements by the president.”
The correct answer, then and now, is that under Marbury, federal courts have the authority to invalidate government actions that run afoul of the U.S. Constitution. That’s why Washington state asked Robart to block Trump’s executive order, arguing that it violated immigrants’ due-process and equal-protection rights under the Fifth Amendment, as well as the First Amendment’s Establishment Clause. That’s why Robart forbade the government from implementing the travel ban. In halting the implementation of an order he deemed unconstitutional, Robart was fulfilling his constitutional duties as a judge.
But Huckabee doesn’t see it that way—and neither, it seems, does Donald Trump or Trump’s Justice Department. The government’s brief urging the 9th Circuit to lift Robart’s injunction questions whether the judiciary should have the power to review Trump’s order at all. Robart’s injunction, the brief states, “harms the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative … and second-guesses the President’s national security judgment.” Later, the brief reiterates that “judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”
These passages are both puzzling and unnerving. It is literally the judiciary’s job to “second-guess” the government. That’s called judicial review—or, in terms even Huckabee’s ninth-grade civics class would understand, checks and balances. The argument that judicial review itself “imposes substantial harm” on the government and the nation is downright bizarre. It would seem to undermine the bedrock of Marbury, creating a new, diminished constitutional role for courts: Scrutinize the legality of government decisions, except when the government says you shouldn’t. (It’s worth noting that the Supreme Court has already considered and rejected government efforts to limit the court’s ability to hear constitutional claims in the realm of national security.)
It is tempting to write off Trump’s tweets as off-the-cuff inanity. But underneath the crass rhetoric, his attack on Robart shares a thesis with his DOJ’s most recent brief: These judges have no right to question our decrees—and if they do, they might even be responsible for future terrorist attacks. The executive branch, in other words, is on the cusp of declaring its travel ban above the law. And now the courts must decide whether they’ll be complicit in the erosion of their own power.
*Correction, Feb. 7, 2017: This article originally misstated the channel on which Huckabee appeared. It was the Fox Business Network, not Fox News Channel. (Return.)