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A conservative judge’s blistering opinion rebuking William Barr for overstepping his constitutional authority

Kimberly Wehle writes:

President 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’s intervention 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.”

Given Trump’s 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 the Constitution.”

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. [Continue reading…]

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