by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law
Someone please give the new administration and its lawyers a pile of pocket constitutions. With a straight face, apparently, government lawyers argued earlier this week that the Trump executive order on immigration and refugees could not even be reviewed in the courts. But because the executive order violates the constitution so blatantly, yesterday the Ninth Circuit delivered a stinging blow to the administration.
In their unanimous opinion, the Ninth Circuit highlighted how totally unsupported the government position was---there was simply “no precedent” that such an order would be “unreviewable” by the courts. The very notion runs “contrary to the fundamental structure of our democracy.” In other words, the administration lost big.
It was surprising that in its papers, the government cited Boumediene v. Bush, the 2008 decision holding that habeas corpus offers rights to Guantanamo Bay detainees. This was another bumbling move. The Boumediene decision was front and center in the Ninth Circuit's decision.
Boumediene was the ruling that once and for all undid President George W. Bush’s effort to make “unreviewable” the cases of the people detailed at Guantanamo Bay. In Boumediene, the Supreme Court emphasized: "Where a person is detained by executive order, rather than, say, after being tried and convicted in a court,” the need for judicial review “is most pressing."