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Miles from the Mainstream
D. R. ZUKERMAN, proprietor

Does the Ninth Circuit plus
“Irreparable Harm” Theory Equal
A Ceremonial President?

February 19, 2017 --

The temporary ban by U.S. District Judge James L. Robart (W.D. Washington) on enforcement of President Trump’s executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” rested on the judge’s view that the plaintiffs were “’likely to succeed on the merits’”; would be “’likely to suffer irreparable harm in the absence of preliminary relief’”; had “’the balance of equities’” in their favor; and, “’an injunction is in the public interest’.”

The action was brought by the State of Washington against President Donald J. Trump, and others. Washington State is in the Ninth Circuit. Washington was joined by the State of Minnesota—which does not lie within the Ninth Circuit.

Federalist Paper No. 69 suggests, at least to LPR, that a sitting president is not amenable to legal process. Alexander Hamilton explained that under the Constitution, only after impeachment and removable from office is the former president “liable to prosecution and punishment in the ordinary course of law.” In the Steel Seizure Case, for example, the defendant was the commerce secretary, not President Truman.

Perhaps the case of “U.S. v. Nixon” did away with the constitution’s distinction between a president and a former president impeached and removed from office. (For an argument opposing the standing Judge Robart accorded Washington and Minnesota, see David B. Rivkin Jr. and Lee A. Casey, “The Ninth Circuit Ignores Precedent and Threatens National Security”, Wall Street Journal, February 11-12, 2017.)

For present purpose, LPR will focus on the “irreparable harm” rationale of Judge Robarts. Redeye Radio hosts Eric Harley and Gary McNamara suggested, in the early hours of February 10 that as a result of the action of Judge Robarts, backed by a three-judge Ninth Circuit Court of Appeals panel, judges could now ban a declaration of war by Congress. Indeed.

What would prevent California going to a U.S. district court in the Golden State to assert that a declaration of war against ISIS is liable to cause “irreparable harm” to residents of California in the armed forces of the United States, ordered to risk life and limb in the war on ISIS.

(And can anyone doubt that this war would be deemed by the left as a War on Islam?)

And why limit the theory to terrorism or military conflict? Chief Justice John Marshall, in McCulloch v. Maryland, 4 Wheat. 316 (1819) noted that “the power to tax involves the power to destroy”. It should not take an “ingenious mind” to bring an action seeking an injunction to block tax measures brought by the Republican-dominated Congress, at the behest of President Trump, to a judge in the Ninth Circuit that adds “irreparable harm” to Marshall’s words on the destructive power of taxation.

What is to be done? First, LPR proposes that Congress codify Hamilton’s suggestion in Federalist No. 69 that a sitting president is not liable to legal process. (Perhaps by removing “Donald J. Trump” from the caption of lawsuit – while he is president – would dampen, somewhat, leftist zeal to rush to court to block his actions.) Next, individual state should not be empowered to throw a monkey wrench into the federal system. Wasn’t this a major problem with the Articles of Confederation that the Constitution was intended to correct?

LPR proposes that a majority of states must join in a lawsuit against the federal government resting on the “irreparable harm” theory. Lastly, if presidents are to remain subject to legal process, Congress should remove jurisdiction of such cases from the district and appellate courts and give to the Supreme Court of the United States original jurisdiction on actions brought against the president.

Absent such corrective measures, the “irreparable harm” argument could give the nation Rule by Judiciary, with the president reduced to a figurehead, issuing proclamations announcing holidays like Thanksgiving Day – but perhaps not even left with the power to pardon the turkeys.